Madras High Court
Senthamarai vs Raja @ Rajendran on 24 November, 2025
S.A.No.389 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 24.11.2025
Coram:
THE HONOURABLE MR.JUSTICE P.DHANABAL
S.A.No.389 of 2015
and
M.P.Nos.1 and 2 of 2015
---
1. Senthamarai
2. Rani .. Appellants
Vs.
1. Raja @ Rajendran
2. Tmt.Selvanayaki .. Respondents
Second Appeal filed under Section 100 of the Code of Civil Procedure
against the judgment and decree dated 31.01.2014 passed in A.S.No.46 of 2010
on the file of the Subordinate Court, Ariyalur, reversing the judgment and decree
dated 12.07.2010 passed in O.S.No.371 of 2005 on the file of the District Munsif
Court, Jayankondam.
For appellants : M/s.M.Dhamodharan
For respondents: Mr.P.Dinesh Kumar for M/s.K.A.Vimal Kumar for R-1
Page No.1/22
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:15:52 pm )
S.A.No.389 of 2015
Second appeal dismissed against R -2,
vide order of Court, dated 16.12.2022
JUDGMENT
This Second Appeal has been preferred as against the judgment and
decree passed by the first appellate Court in A.S.No.46 of 2010 on the file of the
Subordinate Court, Ariyalur, reversing the judgment and decree dated 12.07.2010
passed in O.S.No.371 of 2005 on the file of the District Munsif Court,
Jayakondam.
2. For the sake of convenience and brevity, the parties in this appeal are
referred to as they are ranked in the Original Suit before the trial Court as
plaintiff and defendant.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:15:52 pm )
3. The case of the plaintiffs is that the first plaintiff married the first
defendant and the second plaintiff was born to the first plaintiff and the first
defendant. The second defendant is the sister of the first defendant and the third
defendant is the mother of the first defendant. The suit properties are ancestral
properties and originally they belonged to the father of the first defendant and
the second defendant and the husband of the third defendant, due to
misunderstanding between the first defendant and the first plaintiff, the plaintiffs
are residing separately. Since the properties are ancestral properties, the first
plaintiff is entitled to 1/3 share over the properties. Therefore, the present suit is
filed for partition and separate possession of the properties.
4. The case of the defendants before the trial Court is that the suit is false
and the properties are not ancestral properties and the first defendant has sons
and daughters and they are also the shareholders of the properties. Therefore,
the suit is not maintainable. As per the community customs and usage, the first
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:15:52 pm )
plaintiff was divorced and thereafter, the first defendant married one Deivamani
and he has got four children through the second marriage.
5. Based on the above said pleadings, the trial Court framed the following
issues:
(i) Whether the second defendant is entitled to preliminary decree of 1/4
share over the properties;
(ii) Whether the first plaintiff is entitled to maintenance of Rs.500/- per
month ? and
(iii) To what other relief the plaintiffs are entitled to ?
The trial Court also framed additional issues as below:
(i) Whether the plaintiffs are entitled to 1/4 share over the properties ?
(ii) Whether the first plaintiff is entitled to charge over the properties ?
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:15:52 pm )
6. On the side of the plaintiffs, the first plaintiff was examined as P.W.1
and Ex.A-1 was marked. On the side of the defendants, the first defendant was
examined as D.W.1 and Exs.B-1 to B-7 were marked.
7. After hearing both sides and after perusal of the records, and analysing
the evidence adduced on both sides, the trial Court decreed the suit by granting
preliminary decree of 1/4 share over items 1 to 3 of the suit properties and
dismissal of the suit against item Nos.4 and 5 of the properties. The trial Court
also granted maintenance of Rs.500/- p.m. to be paid by the first defendant to
the plaintiffs and created charge over the properties.
8. Aggrieved by the judgment and decree of the trial Court, the first
defendant preferred First Appeal in A.S.No.46 of 2010 before the first appellate
Court and after hearing both sides, the first appellate Court framed the following
points for determination:
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:15:52 pm )
(i) Whether the judgment and decree of the trial Court is sustainable ?
and
(ii) Whether the First Appeal is to be allowed or not ? and
(iii) Whether the appellant is entitled to the relief as prayed for ?
9. After analysing the evidence adduced on both sides including the
judgment of the trial Court, the first appellate Court partly allowed the First
Appeal and modified the judgment and decree of the trial Court in respect of the
share entitled to by the second plaintiff and declared that the second plaintiff is
entitled to 1/12 share over the properties and the first appellate Court confirmed
the judgment and decree of the trial Court in respect of 4th and 5th items of the
suit properties, where the trial Court dismissed the suit. Aggrieved by the said
judgment and decree of the first appellate Court, the plaintiffs have preferred the
present Second Appeal before this Court.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:15:52 pm )
10. While admitting the Second Appeal on 10.07.2015, this Court framed
the following substantial questions of law:
(i) Having regard to the scope whether the judgments and decrees of the
Courts below are sustainable in law where the first and second plaintiffs are
entitled to get permanent injunction on the 1/4th share of the suit properties ?
(ii) Are not the judgment and decree of the Courts below are vitiated for
total consideration of the second appellant/plaintiff claim is based on the Hindu
undivided family properties ? and
(iii) Whether the judgment and decree of the Courts below are vitiated for
the second wife's children are entitled to get equal share, even the first
defendant and his second wife are alive ?
11. Learned counsel for the appellants/plaintiffs submitted that the first
plaintiff is the daughter of the second plaintiff and the first defendant. The first
defendant married the first plaintiff and their marriage is the first marriage and
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:15:52 pm )
the suit properties are ancestral properties of the first defendant and therefore,
in all the properties, the second plaintiff is entitled to 1/4th share and the first
plaintiff is entitled to maintenance of Rs.500/- and the plaintiffs are entitled to
charge over the properties for maintenance.
11.1. It is further contended by the learned counsel for the appellants
that the trial Court, after considering the evidence adduced by both sides, held
that the items 1 to 3 properties are ancestral properties of the first defendant
and thereby, the trial Court granted preliminary decree by dividing the properties
into four equal shares and allotted one such share to the second plaintiff. As far
as the item Nos.4 and 5 of the properties are concerned, the suit was dismissed,
and no appeal was filed as against the same. The trial Court also awarded
maintenance of Rs.500/- to the first plaintiff and created charge over the
properties for the maintenance amount.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:15:52 pm )
11.2. However, the first defendant preferred First Appeal (Appeal Suit)
before the first appellate Court and the first appellate Court, without considering
the evidence adduced on the side of the plaintiffs, erroneously allowed the First
Appeal and decided that the second plaintiff is entitled to 1/12 share over the
properties and therefore, the judgment and decree of the first appellate Court
are liable to be set aside.
11.3. Further, since the properties belong to Hindu undivided family
(HUF), the second plaintiff is entitled to share over the properties, but however,
the first appellate Court allotted share to the children of the first defendant, born
through the second wife when the father is alive. Therefore, according to the
learned counsel for the appellants, the judgment and decree passed by the first
appellate Court are liable to be set aside.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:15:52 pm )
12. Learned counsel for the first respondent submitted that the properties
are not joint family properties of the first defendant. In fact, the plaintiffs failed
to produce any document to show that the suit properties are joint family
properties of the plaintiffs and defendants. In fact, originally, Chinna Pillai had
four sons and the first defendant is one of the grand-sons of Veerasamy, who is
the son of Chinna Pillai. The said Veerasamy has one son and one daughter and
they are the first and second defendants. The third defendant is the wife of
Veerasamy. Since Veerasamy obtained the properties through his mother Chinna
Pillai, it is his separate properties and the properties cannot be divided during his
lifetime, but however, the trial Court, without considering the same, passed
preliminary decree by dividing items 1 to 3 of the suit properties into four by
holding that item Nos.1 to 3 are ancestral properties of Veerasamy. Aggrieved by
the judgment and decree of the trial Court, the first defendant preferred Appeal
Suit (First Appeal) and the first appellate Court, instead of dismissing the suit in
its entirety, allowed the First Appeal and allotted 1/12 share to the second
plaintiff. Moreover, both the Courts below have granted permanent injunction
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:15:52 pm )
without any such relief sought for by the plaintiffs. The plaintiffs are not entitled
to any share over the properties, since the properties are separate properties of
the first defendant got through his grand-mother. Even though the first
defendant has not preferred any cross-appeal, he is entitled to establish that the
second plaintiff is not entitled to any share over the properties. Therefore, the
second appeal has to be dismissed by holding that the plaintiffs are not entitled
to any share over the suit properties.
13. This Court heard both sides and perused the materials available on
record.
14. In this case, there is no dispute with regard to the relationship
between the parties. It is admitted fact that the first plaintiff is the wife of the
first defendant and the second plaintiff was born to the second defendant
through the first plaintiff, and the third defendant died.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:15:52 pm )
15. According to the plaintiffs, the suit properties are ancestral properties
and the said Veerasamy is the grand-father of the second plaintiff and he is
entitled to properties ancestrally, since the suit properties are ancestral, the
second plaintiff is entitled to 1/3rd share over the suit properties and the first
defendant is entitled to 1/3 share and the second defendant is entitled to 1/3
share over the suit properties. The third defendant died intestate during the
pendency of the suit, thereby, the properties have to be divided into half and the
defendants 1 and 2 are equally entitled to 1/2 share and 1/2 share of the first
defendant is divided into half. Therefore, the plaintiffs are entitled to 1/4th share
of the properties.
16. According to the defendants, the properties are separate properties of
the said Chinna Pillai. From Chinna Pillai, the father of the first defendant
Veerasamy inherited the properties and through Veerasamy, the defendants 1 to
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:15:52 pm )
3 are entitled to the properties. Therefore, the plaintiffs have no right over the
properties.
17. This Court also perused the judgment and decree of the trial Court as
well as the first appellate Court. The trial Court, after analysing the evidence
adduced on both sides, rendered a finding that the items 1 to 3 of the properties
are ancestral properties of Veerasamy, and therefore, the second plaintiff is
entitled to 1/4th share. However, the trial Court dismissed the suit in respect of
item Nos.4 and 5 of the properties, as they are separate properties of the first
defendant and during the life-time of the first defendant, the second plaintiff
cannot claim any share. The first appellate Court also dismissed the relief in
respect of the item Nos.4 and 5 of the properties. However, the first appellate
Court came to the conclusion that the second plaintiff is entitled to 1/12 share
and the first appellate Court also rendered a finding that the properties are
ancestral properties, and thereby, allotted the shares to the second plaintiff,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:15:52 pm )
along with the children born through the second wife. The first appellate Court
failed to consider that during the lifetime of the first defendant, the children born
through the second wife, are not entitled to any share. No doubt, they are
entitled to share over the separate properties of the first defendant, but they are
not entitled to any share during his lifetime. Both the Courts below have
rendered finding that the properties are ancestral properties of Veerasamy and
allotted shares.
18. When the first defendant has preferred First Appeal as against the
judgment of the trial Court, and the first appellate Court also rendered same
findings in respect of the nature of the properties, but he failed to prefer appeal
or any cross-objection as against the findings of the first appellate Court.
Therefore, the contention of the learned counsel for the defendants that the
properties are separate properties of Chinna Pillai and through Chinna Pillai,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:15:52 pm )
Veerasamy had acquired the properties and the defendants 1 and 2 inherited the
same through Veerasamy, is not acceptable.
19. However, the first appellate Court divided the ancestral properties of
the ancestral properties of the first defendant along with the children born
through the second wife, when the father is alive. Therefore, the properties of
Veerasamy have to be divided into three parts to defendants 1 to 3. The first
defendant is the husband of the first plaintiff. The third defendant, being the
mother of the defendants 1 and 2, during the pendency of the suit, died
intestate and thereby, the properties of the third defendant will have to be
divided into two parts and the defendants 1 and 2 are equally entitled to the
properties of the third defendant.
20. The second plaintiff being the daughter of the first defendant, is
entitled to share over the properties of the first defendant on his 1/3rd share.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:15:52 pm )
Though the third defendant died and the properties are derived from the mother
of the first defendant, which is his separate properties, thereby, the properties
are to be divided into 6 parts and the second plaintiff is entitled to 1/6 share and
the first defendant is entitled to 2/6 share and the second defendant is entitled
to 3/6 share over the properties. The plaintiffs are entitled to 1/6 share and the
first defendant is entitled to 2/6 and the third defendant is entitled to 3/6.
21. As far as the first substantial question of law is concerned, namely
"having regard to the scope whether the judgments and decrees of the Courts
below are sustainable in law where the first and second plaintiffs are entitled to
get permanent injunction on the 1/4th share of the suit property?, " is
concerned, it is admitted fact that there is no prayer in the suit for the relief of
permanent injunction in respect of the properties. No Court fee is paid for that
relief. Without any relief, the trial Court granted the relief of permanent
injunction and the first appellate Court also confirmed the judgment and decree
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:15:52 pm )
in respect of the permanent injunction. Therefore, the Courts below ought not to
have granted the relief of permanent injunction, in the absence of any specific
prayer and pleadings. Therefore, the plaintiffs are not entitled for the relief of
permanent injunction of 1/4th share.
22. As far as the second substantial question of law, namely, "Are not the
judgment and decree of the Courts below are vitiated for total consideration of
the second appellant/second plaintiff's claim, which is based on the Hindu
undivided family properties?", is concerned, according to the plaintiff, the
properties are ancestral properties of the first defendant, and thereby, the first
plaintiff is entitled to 1/4th share over the properties. This Court, in the previous
paragraph, decided that the said Veerasamy is the owner of the properties and
after demise of Veerasamy, the legal heirs of Veerasamy, namely defendants 1 to
3 are equally entitled to share over the suit propery. During the pendency of the
suit, the mother of the defendants 1 to 3 died intestate, and therefore, her share
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:15:52 pm )
over the properties will have to be divided into two parts. Therefore, defendants
1 and 2 are equally entitled to the share in the properties of their mother - third
defendant. The second plaintiff is entitled to properties of the share of the first
defendant. The properties derived by the first defendant, through his deceased
father Veerasamy, is his separate properties, and therefore, the Courts below
have failed to consider the same and the first appellate Court has erroneously
divided the share of the second plaintiff, along with the children born to the first
defendant through the second wife during the life-time of the second defendant.
Therefore, the first plaintiff is entitled to 1/6 share over the suit properties.
23. As far as the third substantial question of law, namely "whether the
judgment and decree of the Courts below are vitiated for the second wife
childrens are entitled to get equal share, even the first defendant and his second
wife, are alive?, is concerned, it is admitted fact that the marriage between the
first plaintiff and the first defendant is the first marriage and the second plaintiff
was born through the first wife to the first defendant and during the lifetime of
the first plaintiff, the first defendant contracted in second marriage and through
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:15:52 pm )
the second marriage, he has got four children. The first appellate Court
erroneously granted share to the children of the second wife, along with the
second plaintiff and the same is not permissible, when the first defendant is
alive. Therefore, the judgment and decree passed by the first appellate Court are
liable to be modified to the effect that the second plaintiff is entitled to 1/6
share over the suit properties. The third substantial question of law is answered
accordingly.
24. In the result, this Second Appeal is partly allowed. The judgment and
decree passed by the first appellate Court are modified to the effect that the
second plaintiff is entitled to 1/6th share over items 1 to 3 properties and the
relief of permanent injunction, is set aside. In other respects, the judgment and
decree passed by the first appellate Court are confirmed. Considering the nature
of the suit and the relationship between the parties, there is no order as to costs.
Consequently, the miscellaneous petitions are closed.
24.11.2025
Index: Yes/no
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:15:52 pm )
Speaking Order: Yes/no
Neutral Case Citation: Yes/no
cs
To
1. The Subordinate Judge, Ariyalur.
2. The District Munsif, Jayankondam.
3. The Record Keeper, V.R.Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:15:52 pm )
P.DHANABAL, J
cs
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:15:52 pm )
24.11.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:15:52 pm )
