Madras High Court
Manickam vs Amsaveni on 25 June, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
A.S.No.522 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 17.06.2025 Pronounced on : 25.06.2025
Coram:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
A.S.No.522 of 2024
and
C.M.P.No.15929 of 2024
1.Manickam
2.Srinivasan .. Appellants/Defendants 1 & 2
Vs.
1.Amsaveni
2.Munusamy
3.Sumathi
4.Yuvaraj
5.Elamparuthi
6.Jothi .. Respondents/Plaintiffs
PRAYER: Appeal Suit is filed under Section 96 of C.P.C, to set aside the
judgment and decree dated 28.10.2020 made in O.S.No.84 of 2018 passed
by the learned Principal District Judge, Dharmapuri, allow the appeal.
For Appellants : Mr.S.Ganesh
Asst.by Mr.G.Dhyaneshwar
For R1 to R4 : Mr.P.Vijendran
For R5 : Mr.V.Nicholas
1/21
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A.S.No.522 of 2024
For R6 : MJ.Ravikumar
JUDGMENT
The suit for partition was filed by the sister and her children
against her brother, another sister, the brother’s son, and a purchaser who
had bought part of the property from the brother and his son.
2. According to the 1st plaintiff, her father Narasimha Naidu
died in the year 1969, leaving behind two sons and two daughters. One of
his sons, Sampath, passed away in 1974. Narasimha Naidu had ancestral
property at the time of his death, which, according to the 1 st plaintiff, is to
be inherited equally by the 1st plaintiff, the 1st defendant, and the 4th
defendant.
3. The 1st defendant, being the elder son in the family,
allegedly took advantage of his position and changed the patta to his
name, enjoying the property exclusively. However, the suit property was
jointly enjoyed by the 1st plaintiff, 1st defendant, and 4th defendant
without any division by metes and bounds. Due to recent
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misunderstandings regarding joint enjoyment of the property, the 1st
plaintiff sought partition and claimed her 1/3rd share. Her demand, made
on 11.03.2018, was refused by the 1st defendant. A panchayat was
convened for an amicable partition, but it failed due to the antagonistic
attitude of the 1st defendant.
4. On Enquiry at the Sub-Registrar's Office in Karimangalam,
the 1st plaintiff came to know that the 1st defendant had sold a portion of
the suit property, specifically 33 cents in S.No. 60/1 and 2.77 cents in
S.No. 60/3, to the 3rd defendant for a sale consideration of Rs. 3,54,000/-.
A registered sale deed was executed on 30.11.2005. This sale was made
without any right, as the property was joint family property held in
common and not partitioned. The sale was also made without the
knowledge or consent of the 1st plaintiff and 4th defendants. The plaintiffs
contend that the sale is illegal and has no binding effect on the co-
owners. Therefore, the sale deed ought to be declared null and void.
5. Being the legal heirs of Narasimha Naidu and the property
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being ancestral in nature, on his demise, his children, namely the 1st
plaintiff, 1st defendant, and 4th defendant, became entitled to 1/3rd share
each in the suit property. The suit was contested by the 1st defendant,
who filed a written statement, which was adopted by his son, the 2nd
defendant, and by the 4th defendant, who is the second sister. In the
written statement, the defendants denied the averments made in the
plaint, stating that they are false and unsustainable.
6. It was further stated that Item Nos.1 and 2 refer to the same
property, which originally belonged to Narasimha Naidu, S/o
Govindasamy, who did not acquire any property independently during his
lifetime. He had no occupation other than agriculture. He had sold a
portion of the property inherited from his father Govindasamy and also
incurred debts, obtaining loans from persons such as Nallappan,
Ramachandran, Gopal, and Duraisami, executing promissory notes to
meet agricultural and family expenses.
7. Before repaying these debts, Narasimha Naidu unfortunately
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died in a motor accident. His wife, Nagarathinammal, also passed away
in the same year (1969), leaving behind their four minor children: the 1st
defendant (aged 14 years), the 1st plaintiff (aged 13 years), their deceased
brother Sampath (aged 7 years), and the 4th defendant Jothi (an infant
aged 1½ years).
8. Following the deaths of their parents, the responsibility of
managing the household and repaying debts fell on the 1st defendant. He
engaged in agriculture, took care of the family, and repaid debts incurred
by his father. He also cared for his younger brother Sampath, who was ill,
and spent approximately Rs.10,000/- for medical treatment by borrowing
from third parties. Despite efforts, Sampath passed away at the age of 8.
In 1973, the 1st plaintiff was married to one Madheswaran. The 1st
defendant spent Rs.25,000/- on the marriage and provided 10 sovereigns
of gold jewellery and 1 sovereign gold ring to her husband as Sridhana.
To meet these expenses, he incurred additional debt of Rs.50,000/-. Since
Madheswaran did not have adequate income, the 1st defendant also
helped him secure a loan of Rs.50,000/- to purchase a lorry for
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livelihood.
9. At the request of the 1st plaintiff, the 1st defendant further
assisted her in purchasing a house site worth Rs.20,000/- and constructed
a house by arranging an additional loan of Rs.60,000/-. After the death of
the 1st plaintiff's husband in 1990, the 1st defendant continued to support
her family, helped in operating the lorry business, and provided monetary
assistance for the marriages of her children.
10. The 1st defendant also arranged the marriage of his other
sister, the 4th defendant, in 1983, spending Rs.50,000/- on the marriage
and gifting jewels and household articles worth Rs. 24,000/- as Sridhana.
The ancestral house situated on the suit property was altered and
reconstructed by the 1st defendant at an expense of Rs.1,00,000/-. He also
repaid a loan of Rs.30,000/- borrowed by their father during his lifetime
for family expenses. To repay the loans incurred for the marriages of his
sisters and to settle other family debts, the 1st defendant sold Item 2 of the
suit property to the 3rd defendant on 30.11.2005 for valid consideration,
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and the sale proceeds were used to discharge the said loans.
11. At the time of Narasimha Naidu’s death in 1969, there was
no joint family in existence. Therefore, the 1st plaintiff and the 4th
defendant cannot claim any right over the property. The property left by
late Narasimha Naidu belongs absolutely to the 1st defendant, who is the
sole surviving male descendant of Narasimha Naidu.
12. The 1st plaintiff, who was married in 1973, and the 4th
defendant, who was married in 1983, are not entitled to claim any right,
title, or interest in the suit property. Consequently, they are not entitled to
seek a declaration to declare the sale deed dated 30.11.2005 as null and
void. Since her marriage, the 1st plaintiff has never been in joint
possession of the suit property with the 1st defendant. Hence, the suit is
also barred by limitation and liable to be dismissed for failure to properly
value the suit under Section 37(1) of the Tamil Nadu Court Fees and Suit
Valuation Act, which requires payment of ad valorem court fees.
13. This defendant has already spent over Rs.10 lakhs for the
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benefit of the 1st plaintiff. She has sold the house that was constructed
with the financial assistance provided by this defendant. Therefore, she is
not entitled to any share in the suit property.
14. The written statement filed by the 1st defendant has been
adopted by the 2nd defendant and the 4th defendant (one of the sisters).
The 3rd defendant, who purchased the property, also filed a written
statement stating that he purchased the property only after due enquiry
into the title and rights of the 1st defendant. He further stated that he was
aware that the 1st defendant had incurred debts to the extent of Rs.5
lakhs, including amounts spent on the marriage expenses of the 1st
plaintiff and the 4th defendant, as well as for the discharge of debts left
by his father. Thus, the sale of Item 2 of the property was for valid
consideration and is legally valid. Hence, the sale of the property by the
1st defendant, claiming under his father, cannot be declared void. In any
event, the relief of declaration sought is barred by limitation.
Accordingly, the suit is liable to be dismissed.
15. Based on the pleadings, the Trial
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Court framed the following issues:
“1.Whether the first plaintiff is entitled
for 1/3 share partition in suit schedule
properties?
2.Whether the plaintiffs are entitled
permanent injunction against defendants?
3.Whether the plaintiff is entitled for
declaration of null and void in respect of sale
deed dated 30.11.2005?
4.To what any other relief the plaintiff is
entitled to?”
Subsequently, the following Additional issues were also framed:-
“1.Whether the suit properties are
ancestral properties of the 1st plaintiff's father
Late Narasimha Naidu?
2.Whether suit properties are in joint
possession and enjoyment of 1st plaintiff, 1st
defendant and 4th defendant?
3.Whether 1st defendant has got no right
to sell a portion of suit property to the 3rd
defendant through sale deed dated 30.11.2005?
4.Whether suit properties absolutely
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belonged to the 1st defendant?
5.Whether relief No.3 in the suit is
barred by the limitation?
6.Whether the Court fee paid under
Section 37(2) of TNCF Act, is correct and
proper?
7.Whether plaintiffs are entitled for the
relief of partition as prayed for?”
16. Before the Trial Court, on the side of the plaintiffs, three
witnesses were examined as PW.1 to PW3 and two documents were
marked as Ex.A1 and Ex.A2. On the side of the defendants, four
witnesses were examined as DW.1 to DW.4 and eighteen documents were
marked as Ex.B1 to ExB18.
17. The Trial Court, taking note of the fact that the 1 st plaintiff
had sufficient knowledge about the execution of Ex.A2, the sale deed
dated 30.11.2005 executed by the 1st and 2nd defendants in favour of the
3rd defendant, found that the plaintiffs had challenged the validity of the
said transaction belatedly, after 13 years. Therefore, the relief of
declaration against the sale deed could not be granted on account of
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delay and limitation.
18. However, while admitting that the property was sold to
discharge family debts, the Trial Court held that the value of the 1st
plaintiff’s share, which was sold to the 3rd defendant, must be adjusted at
the time of passing the final decree. On the issue of joint possession, the
Trial Court observed that, as a member of the family, the 1st plaintiff is
deemed to be in joint possession and enjoyment of the ancestral property.
Holding that the suit properties are ancestral in nature, the Trial Court
concluded that at the time of Narasimha Naidu’s death, his wife, two
sons, and two daughters were alive, and therefore, the character of the
suit properties as joint family ancestral property stands established.
19. Aggrieved by the judgment, defendants 1 and 2 have
preferred this appeal before this Court, contending that the Trial Court
failed to properly consider the fact that the 1st defendant, being the eldest
son in the family, was only 14 years old at the time of the sudden demise
of both parents, while his siblings, including his brother and sisters, were
much younger. It was through his efforts and labour that the family was
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sustained, and he secured the welfare of the 1st plaintiff and the 4th
defendant by performing their marriages, incurring expenses and
borrowing money for the same.
20. The Trial Court, having accepted that a portion of the
property was sold to the 3rd defendant for discharging family debts and
meeting family expenses, and that such sale was made with the
knowledge of the 1st plaintiff, ought not to have entertained the challenge
to the sale after a delay of 13 years. It is further submitted that the
property currently in the hands of the 1st defendant/1st appellant includes
the ancestral house, which he reconstructed from his own income. The 1st
plaintiff, who was married in the year 1973 and has been living
separately ever since, cannot now claim to be in joint possession and
enjoyment of the property. In the absence of any evidence of joint
possession, the suit for partition is liable to be dismissed both on the
grounds of deficiency in court fee under the Tamil Nadu Court Fees and
Suit Valuation Act and the bar of limitation.
21. Documents marked as Exs. B1 to B12 are crucial and it
clearly establishes that the suit property vested absolutely with the 1st
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defendant, who has been in exclusive possession and enjoyment thereof,
to the exclusion of the 1st plaintiff and the 4th defendant. It is further
argued that the Trial Court failed to appreciate that Narasimha Naidu had
received the suit and other properties from his father Govindasamy, but
had sold most of them during his lifetime. The remaining property was
encumbered with debts, which the 1st defendant later cleared by selling
part of the property and incurring further expenses, particularly for the
marriages of his sisters. Therefore, the decree passed by the Trial Court is
unsustainable and liable to be set aside.
22. The learned counsel appearing for the defendants submitted
that it is a well-settled principle of law that the enjoyment of joint family
property among family members is presumed unless the contrary is
proved. In the present case, the 1st plaintiff has affirmatively stated that
she had cordial relations with her brother and frequently visited the
ancestral home. She claims to have jointly enjoyed the property until
2018, and only after her brother began to behave differently and refused
to give her share did she probe further and found that a portion of the
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property had been sold to the 3rd defendant without her knowledge. It is,
therefore, contended that a female member of the family cannot be
excluded from inheriting her father's property along with her brother and
sister merely on the ground that she got married in 1973 and has been
living separately since then.
23. Points for Consideration:
1. Whether the plaintiff can claim a share in the entire suit
property, including the portion sold 13 years ago with her
knowledge?
2. Whether the doctrine of ouster would apply to the 1st
plaintiff, who was married in 1973 and has since been
residing separately with her family elsewhere?
24. The 1st plaintiff, who got married in the year 1973 and has
been living separately, claims that she, along with the 1st and 4th
defendants, was in joint possession of the suit property. However, there is
no evidence to support constructive possession or enjoyment of the suit
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schedule property, as more fully described in the plaint. The properties in
question are agricultural lands, and no evidence has been adduced to
show that the 1st plaintiff participated in any agricultural activities. She
has admitted that the 1st defendant alone was engaged in cultivation. She
further admitted that the 1st defendant mortgaged the property and raised
a loan from Kaveripattinam Benefit Fund to facilitate the purchase of a
lorry by her elder son, Munusamy. While the 1st defendant contends that
he has discharged the loan, the 1st plaintiff denies this suggestion in her
cross-examination.
25. Be that as it may, it is not the case that the 1st defendant had
no concern for the family of the 1st plaintiff even after her marriage and
after her children became adults. The said Munusamy, examined as PW.2,
stated in his cross-examination that though his mother/the 1st plaintiff,
was residing at Attur, she occasionally visited the village where the suit
property is located and participated in agricultural activities. However,
this claim was not even pleaded or stated by the 1st plaintiff in her
evidence. Hence, it is an afterthought introduced to suggest that the
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properties were under joint enjoyment. In further cross-examination, he
attempted to support his mother’s version regarding the alleged
panchayat held in 2018 for partition. However, there is no evidence to
show that the 1st plaintiff ever made a request for partition or that any
attempt at mediation by the villagers occurred.
26. The 1st plaintiff's daughter also entered the witness box and
was examined as PW.3, but she was unable to substantiate how the
property was jointly enjoyed by them until 2018 or that there was any
mediation by village elders for partition.
27. On perusal of the records, it is clear that after the demise of
Narasimha Naidu in 1969, the suit property remained under the control of
the 1st defendant, who toiled to raise the family, which includes the 1st
plaintiff, the 4th defendant and the deceased brother Sampath. It is an
admitted fact that the 1st defendant conducted the marriages of both the
1st plaintiff and the 4th defendant. Especially in light of the fact that the
family's lack of financial resources, it is natural to infer that the 1 st
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defendant borrowed money to meet these expenses.
28. To substantiate the said plea that family debts existed at the
time of their father's demise and that he incurred further debts for raising
the family and conducting his sisters’ marriages and his brother's medical
expenses, the 1st defendant not only examined himself and subjected
himself to cross examination, but also examined Venkatesan (DW.2) who
testified about the debts incurred by the 1st defendant for family
expenses, including the marriages of the 1st plaintiff and the 4th
defendant, and the financial assistance given to the 1st plaintiff for
purchasing a house site and constructing a house. Similarly, Ragunathan
(DW.3) deposed about the assistance extended by the 1st defendant to the
1st plaintiff and her husband. Though this evidence is oral and lacks
documentary support, the Court takes judicial notice of the fact that
income derived from the ancestral property was substantially spent on the
1st plaintiff and the 4th defendant.
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29. The sale of a portion of the property to the 3rd defendant in
2005 was also done to discharge family debts and meet family expenses,
and was carried out with the knowledge of the 1st plaintiff. Hence, she
cannot now claim any right over the said portion of land sold to the 3rd
defendant. It is contended by the plaintiffs that he constructed a house on
the suit property by spending his own money and developed the
agricultural land through his personal labour. This contention also
remains unchallenged.
30. In such circumstances, the judgment and decree of the trial
Court, holding that the 1st plaintiff is entitled to a 1/3rd share in the entire
suit property, requires interference. The 1st plaintiff cannot claim partition
of the entire property after having been ousted and remaining silent for
more than 12 years, despite having knowledge that the 1st defendant was
independently enjoying the property and had alienated a portion of it, and
had transferred the revenue records into his name.
31. However, the 1st plaintiff cannot be entirely deprived of her
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right to a share in the property that are available in the hands of the 1st
defendant and has not been alienated. The 1st plaintiff is entitled to claim
a 1/3rd share in the remaining property that is still available for division.
In particular, with respect to the land in S.No.60/1 and S.No.60/3, which
was sold to the 3rd defendant in 2005, the plaintiff cannot now claim a
share.
32. As for the remaining properties in Survey Nos.51/4, 43/1,
55/3, 55/4 and 93/4, the division by value be made and each branch to
get 1/3rd share. The residential house and the land appurtenant to it,
currently in the possession of the 1st and 2nd defendants shall remain with
the 1st defendant while deciding the share in the S.No.93/4 at
Pachinampati village, is dealt with in the final decree proceedings. In
other words, insofar as the land in S.No.93/4, where the residence and
appurtenant land are located (measuring 95 Ares), when same shall be
allotted to the 1st defendant and if any difference in value shall be
compensated by the 1st defendant to the 1st plaintiff and 4th defendant
either by land or money.
33. Accordingly, this Appeal Suit is partly allowed, and the
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judgment and decree of the trial Court is modified as above.
Consequently, the connected Miscellaneous Petition is closed. There
shall be no order as to costs.
25.06.2025
Index: Yes/No
Speaking/Non Speaking order
Internet: Yes
Neutral Citation: Yes/No
rpl
To
1.The Principal District Judge, Dharmapuri .
2.The Section Officer, V.R.Section, High Court of Madras, Chennai.
DR.G.JAYACHANDRAN, J.
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rpl
delivery Judgment made in
and
25.06.2025
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