Madras High Court
S.Jalaja (Died) vs Kasturi (Deceased) on 9 October, 2025
2025:MHC:2340
A.S.NO.567 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 02/07/2025
JUDGMENT PRONOUNCED ON : 09 / 10 / 2025
CORAM :
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
APPEAL SUIT NO.567 OF 2016
AND
CMP NO.14251 OF 2016
AND
CMP NO.13573 OF 2025
1.S.Jalaja (Died) ... Appellant No.1 / Defendant
2.K.Damodaran
3. Senthil Kumar
4. Narmadha Priya ... Appellant Nos.2 to 4 /
Legal representatives of
deceased Appellant No.1
(Note: Appellant Nos. 2 to 4
brought on record as legal
representatives of the deceased
sole appellant - S.Jalaja vide
Order of this Court dated July 29,
2022 made in CMP.No.3940 of
2022 in AS.No.567 of 2016)
Versus
Kasturi (Deceased)
1.S.Sarveswaran
2.S.Mageswari
3.S.Ganesa Moorthy
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A.S.NO.567 of 2016
4.Sasikala (Died) ... Respondent Nos.1 to 4
/ Plaintiff Nos.2 to 5
5. K.Subramaniam ... Respondent No.5 /
Legal representative of
deceased Respondent No.4
(Note: Respondent No.4
brought on record as legal
representative of the deceased
Respondent No.4 - Sasikala vide
order of this Court dated
February 18, 2020 made in
C.M.P. No.22807 of 2018 in
A.S. No.567 of 2016)
PRAYER: First Appeal filed under Section 96 read with Order XLI Rule
1 of Code of Civil Procedure, 1908 praying to set aside the Judgment and
Decree dated June 04, 2016 passed in O.S.No.11820 of 2010 by the
Learned I Additional Judge, City Civil Court, Chennai.
For Appellants : Mr.K.Mani
For Respondent : Mr.Ravichandran Sundaresan
Nos.1 to 3 & 5
******
Page No.2 of 28
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A.S.NO.567 of 2016
JUDGMENT
Feeling aggrieved by the Judgment and Decree dated June 04, 2016
passed in O.S.No.11820 of 2010 by the 'learned I Additional Judge, City
Civil Court, Chennai' ['Trial Court' for brevity], the defendant therein has
filed this Appeal Suit under Section 96 read with Order XLI Rule 1 of 'the
Code of Civil Procedure, 1908' ['CPC' for short].
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
3. To be noted, the plaint was first presented by the plaintiff before
this Court on August 28, 2001 and taken on file as C.S. No.728 of 2001.
Thereafter, in view of the change in pecuniary jurisdiction brought by the
amendment made in Chennai City Civil Courts Act, 1892 through Tamil
Nadu Civil Courts and Chennai City Civil Court (Amendment) Act, 2010
(T.N.Act 19 of 2010), the Suit was transferred to the Trial Court and
renumbered as O.S. No.11820 of 2010.
4. During the pendency of the Suit, the first plaintiff - Kasturi
passed away and her legal representatives were impleaded.
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FACTS
5. The facts of the case, shorn of elaboration, necessary for the
disposal of this Appeal Suit are as follows:
6. One Shanmuga Mudaliar and Kamalavathy had three daughters,
who are Kasthuri / first plaintiff, Jalaja / defendant, Santha Bai and one
son - Chandrasekaran. Above relationship between the parties is
undisputed.
7. The brief version of the case of the plaintiffs is that Shanmuga
Mudaliar acquired the Suit land along with a superstructure through a
transfer of leasehold rights and his leasehold rights have been recognised
by the Special Trustee of Bharani Abisekam Sri Arunachaleswarar Swami
Temple, Tiruvannamalai. He made improvements to the said
superstructure. Then Shanmuga Mudaliar and Kamalavathy passed away
intestate on November 11, 1964 and July 21, 1966 respectively.
7.1. Further case of the plaintiffs is that following their demise, the
first plaintiff, defendant, their brother - S. Chandrasekaran and sister
-Santha Bai succeeded the leasehold right over the Suit Item No.1. Then,
on August 18, 1966, the first plaintiff and defendant executed a registered
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Release Deed in favour of their brother - S. Chandrasekaran and sister -
Santha Bai, releasing all their rights and interests over the Suit Item No.1.
7.2. Further case of the plaintiffs is that after the release,
Chandrasekaran constructed a superstructure in addition to the existing
superstructure, utilising rental income from the Suit Item No.1 and also
out of his own exertions. Both Chandrasekaran and Santha Bai remained
unmarried. Santha Bai passed away intestate on December 22, 1989, and
Chandrasekaran passed away intestate on April 10, 1999, leaving behind
the first plaintiff and defendant as their only legal heirs. Thus, the first
plaintiff is entitled to ½ share in the Suit Item No.1 as well as in the rental
income therefrom. The first plaintiff and defendant being co-sharers were
in joint possession of Suit Item No.1. The defendant is refusing to give the
first plaintiff her proportionate share in the rental income and also refusing
amicable partition. Further, the defendant is refusing to give the first
plaintiff's shares in the movable assets including gold described as Suit
Item No.2. Notices were exchanged between the parties and then the
present Suit for the main relief of partition and the consequent reliefs of
rendition of accounts and future mesne profit from the date of plaint and
till actual partition.
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8. The defendant filed written statement contending that after
Shanmuga Mudaliar's (Father) demise in 1964, it is the defendant who has
been paying rent to the Devasthanam for the lease of suit property. The
first plaintiff is not in joint possession of the suit property as alleged. The
Suit valuation is incorrect. The defendant admits the Release Deed in
favour of Chandrasekaran and Santha Bai executed by her and the first
plaintiff. But defendant contends that it is she who put up the additional
superstructure for her brother - Chandrasekaran in the backside of the Suit
land and also renovated existing superstructure by converting it from a
tiled house to RCC building, all at her own expense. In fact, it is she who
took care of her brother - Chandrasekaran, who was suffering from heart
ailment and her specially abled sister - Santha Bai. During his lifetime,
Chandrasekaran had declared that the defendant would be the sole owner
of the superstructure and entitled to its entire rental income. The first
plaintiff refused to look after Chandrasekaran and Santha Bai, and
Chandrasekaran intended that the suit property falls into the hands of
defendant after his lifetime as evident from his letter (nil dated) to
defendant. The first plaintiff is not entitled to any share in the suit
property. Further, the defendant does not have custody of any movables as
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described in Suit Item No.2. Accordingly, the defendant sought to dismiss
the Suit.
9. In response to the written statement, a reply statement was filed
on the side of the plaintiffs denying the allegations made in the written
statement.
10. In turn, the defendant filed an additional written statement
reiterating the averments made in the written statement and denying the
case of the plaintiffs.
TRIAL COURT
11. Based on the above pleadings, the Trial Court framed the
following issues:-
“1.Whether the plaintiff is entitled for partition and
separate possession of her one-half share in the
schedule mentioned property?
2. Whether the plaintiff is entitled for rendition of
accounts as asked for?
3. Whether the plaintiff is entitled to future mesne
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profits from the date of plaint till the date of
final decree?
4. Whether the plaintiff is entitled to one-half
share in the rental income from Item 1 of the
schedule mentioned property from the date of
plaint till the date of final decree or till the date
or realization?
5. Whether the suit framed, is not maintainable?
6. Whether the defendant is the owner of the
superstructure in Item No.1 of the suit property?
7. Whether the valuation of the suit and payment of
court fee is proper since the plaintiff is not in
joint possession and enjoyment of the Item No.1
of the suit property?
8. Whether the suit properties are correctly valued
and proper court fee is paid by the plaintiff?
9. Whether Item No.2, moveable items as
mentioned in the plaint schedule are imaginary
items and not in existence and in possession of
the defendant on the date of filing of the suit?
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10.Whether the defendant is a lessee for the land
for item No.1 of the suit property under Bharani
Abishekam Sri Arunacheleswarar Swami Temple
Devasthanam, Tiruvannamalai?
11. Whether the release deed dated 18.08.1996 is
true, valid and binding on the defendant?
12. To what other reliefs the parties are entitled
to?”
12. At trial, on the side of the plaintiffs, the second plaintiff was
examined as P.W.1 and exhibits Ex-A.1 to Ex-A.11 were marked. On the
side of the defendants, the defendant examined herself as D.W.1 and
marked Ex-B.1 to Ex.B.27 as exhibits.
13. After full-fledged trial, the Trial Court held that Chandrasekaran
and Santha Bai were the absolute leaseholders of the Suit Item No.1 in
view of the Release Deed executed by the first plaintiff and the defendant.
After the demise of Santha Bai on December 22, 1989 and
Chandrasekaran on April 10, 1999, the first plaintiff and the defendant
became entitled to the leasehold right over Suit Item No.1 equally and
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thus, each are entitled to ½ share in it. After the demise of Chandrasekaran
and Santha Bai, the defendant is in exclusive enjoyment of Suit Item No.1.
The first plaintiff and the defendant are co-owners and hence, both are
deemed to be in joint possession and therefore, the valuation of the Suit
and the Court Fee paid is correct. Merely because the defendant is in
possession and enjoyment of Suit Item No.1 by paying ground rent to the
lessor, that per se does not confer exclusive right over Suit Item No.1
excluding the first plaintiff. Accordingly, a Preliminary Decree was
granted in respect of Suit Item No.1 for partition and rendition of
accounts. It also directed the plaintiffs to take separate steps for future
mesne profits. Qua Suit Item No.2, as the presence and custody of such
items with the defendant was not proved, the Suit was dismissed.
FIRST APPEAL
14. Feeling aggrieved, the defendant therein has preferred this
Appeal Suit under Section 96 read with Order XLI Rule 1 of the CPC for
Suit Item No.1.
14.1. To be noted, the plaintiff has not preferred appeal against the
dismissal of the suit qua Suit Item No.(2). Hence, the dismissal decree
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passed by the Trial Court qua Suit Item No.(2) reached finality.
15. During the pendency of this Appeal Suit, Appellant No.1 –
S.Jalaja/defendant passed away and her legal representatives were brought
on record as Appellant Nos. 2 to 4; and Respondent No.4 - Sasikala passed
away and hence, her legal representative was impleaded as Respondent
No.5.
CIVIL MISCELLANEOUS PETITION NO.13573 OF 2025
16. During the pendency of this Appeal Suit, Appellant No.1 /
defendant (since deceased) filed a petition under Order XLI Rule 27 of
CPC seeking to receive additional evidence.
17. Mr.K.Mani, learned Counsel for the appellants would submit
that the first document sought to be received is a notice issued by Assistant
Commissioner / Executive Officer of Arulmigu Bharani Abisekam Sri
Arunachaleswarar Swami Temple, Tiruvannamalai, enhancing the rent for
the Suit Item No.1 to Rs.2170/- from November 1, 2001 as fair rent. The
second document is the receipt for ground rent paid by defendant on
August 13, 1994. He would contend that these two documents are vital to
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prove the case of the defendant. Accordingly, he would pray to allow the
petition, and receive and mark the additional evidence.
18. On the other hand, Mr.Ravichandran Sundaresan, learned
Counsel for the respondents would argue that the first document sought to
be marked is dated April 10, 2002 i.e., after the Suit. As regards the second
document, there are various ground rent receipts in Ex-B.22 series for the
years between 1964 and 1990 standing in the name of Shanmuga Mudaliar
and the second document also stands in the name of Shanmuga Mudaliar
and pertains to the year 1994. In these circumstances, the second
document is not necessary for deciding the matter. Accordingly, he would
pray to dismiss the petition.
19. This Court has considered both sides' submissions and perused
the affidavit filed in support of the Order XLI Rule 27 petition. As per Ex-
B.22 series, in the year 1964, ground rent to Suit Item No.1 was Re.0.94/-
which has gradually increased to Rs.37.60/- in 1995 in the year. This has
been enhanced to Rs.2170/- by the Fair Rent Fixation Committee, post the
Suit. Already sufficient evidence is available on record and the said
document would in no manner be helpful to decide the Suit.
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20. Similarly, as regards the second document, when a series of rent
receipts standing in the name of Shanmuga Mudaliar have been marked in
Ex-B.22 series, the second document, a rent receipt pertaining to 1994,
which also stands in the name of Shanmuga Mudaliar, is not going to help
this Court decide the Suit in any manner. More so, when it is admitted that
the defendant was residing along with Chandrasekaran and Santha Bai and
that the ground rent payments were made in the name of Shanmuga
Mudaliar. In these circumstances, this Court is of the view that the
additional documents sought to be received and marked are in no way
necessary for the disposal of this case and hence, the Order XLI Rule 27
petition deserves to be dismissed. Accordingly dismissed.
ARGUMENTS:
21. Mr.K.Mani, learned Counsel for the appellants would argue that
during the lifetime of Chandrasekaran, the defendant alone put up
additional construction by spending more than Rs.1,00,000/-. Further, after
the first plaintiff's marriage in 1966, the first plaintiff left the suit property
and is residing elsewhere with her husband. The defendant alone took care
of her specially abled sister - Santha Bai and ailing brother -
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Chandrasekaran. The defendant was working as an Assistant in the Office
of Executive Engineer, PWD Department. Ex-B.21 is the GPF Advance
Sanction Order wherein purpose is mentioned as for medical treatment and
prolonged illness of sister (Santha Bai). Ex-B.25 - Medical Bills would
show that the defendant alone was looking after Chandrasekaran and took
care of his medical expenses. Further, Ground Rent Receipts in the Ex-
B.22 series would show that the defendant alone paid the ground rent for
Suit Item No.1 since 1967 till filing of the Suit.
21.1. Further, Chandrasekaran during his lifetime, nominated the
defendant as his nominee in the joint account (either or survivor). Further,
Chandrasekaran executed Ex-B.9 - 'Kurichittu' expressing his desire that
as the additional superstructure was built by the defendant, she alone is
entitled to collect rent from Suit Item No.1 and succeed it after his demise.
The Trial Court failed to consider Ex-B.9 and other exhibits, and erred in
decreeing the Suit qua Suit Item No.1 in a cryptic fashion without any
proper discussion. The Trial Court ought to have declared that the
defendant is the owner of the superstructure and bears the leasehold rights
over the Suit land. Accordingly, he prayed to allow the Appeal Suit, set
aside the Judgment and Decree of the Trial Court and dismiss the Suit qua
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Suit Item No.1.
21.2. He would rely on the following in support of his submissions:
(i) Sanjay Kumar Singh's Case – Judgment of Hon'ble Supreme
Court in Sanjay Kumar Singh -vs- The State of Jharkhand,
reported in 2022 LiveLaw (SC) 268
(ii) Rangammal’s Case - Judgment of this Court in Rangammal -vs-
Sundarambal & another, reported in 2021-2-L.W.373;
(iii) M.C.Anantharaman’s Case - Judgment of this Court in
M.C.Anantharaman (died) and Others -vs- M.C.Krishnamoorthy,
in C.R.P.Nos.629 & 1146 of 2017 dated October 26, 2022;
(iv) V.Durai’s Case - Judgment of this Court in V.Durai and another
-vs- V.Venkatesan, in C.R.P.(PD)No.2511 of 2017 dated December
10, 2021;
(v) Renugopal’s Case - Judgment of this Court in Renugopal -vs-
Arulmighu Gangai Narayana Perumal Temple, reported in (2001)
2 M.L.J. 507;.
(vi) C.G.Rajendran’s Case - Judgment of this Court in C.G.Rajendran
-vs- M.Senthilkumar, reported in (2002) 2 M.L.J. 809;
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22. Per contra, Mr.Ravichandran Sundaresan, learned Counsel for
the respondents would argue that Chandrasekaran and Santha Bai were the
leaseholders of Suit Item No.1. Santha Bai passed away on December 22,
1989 and Chandrasekaran on April 10, 1999. After their demise, the first
plaintiff and the defendant are equally entitled to the leasehold right over
Suit Item No.1 as well as to partition the same equally. The Suit was filed
in August 2001. Late Chandrasekaran was gainfully working as a cashier
in George Town Co-operative Bank. He remained unmarried and utilised
his own income and the rental income from Suit Item No.1 to set up the
additional superstructure.
22.1. The ground rent is being paid in the name of Shanmuga
Mudaliar till date. Hence, though the defendant is paying the ground rent,
she cannot claim exclusive rights over the Suit Item No.1. The payment of
ground rent by defendant, who is enjoying the rental income from Suit
Item No.1 absolutely without giving the due and proportionate share of
first plaintiff, can only be considered to be made on behalf of the first
plaintiff as well. The first plaintiff and the defendant are co-owners in
respect of the leasehold property viz., Suit Item No.1. In the absence of
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valid conveyance as per the Transfer of Property Act, 1882, or valid
testate as per the Indian Succession Act, 1925, the first plaintiff's right
over Suit Item No.1 cannot be deprived of. As regards Ex-B.9 -
'Kurichittu', it does not bear any date, witnesses' name or signature and it
was not proved despite denial of Chandrasekaran's alleged signature found
in it. There is no acceptable evidence to show that it is the defendant who
put up the additional superstructure. Ex-B.26 - Payment Receipt allegedly
made towards the maintenance of Suit Item No.1, was not proved as per
law and the same is a self-serving document. The Trial Court after
considering the evidence available on record, rightly granted the relief of
partition and rendition of accounts qua Suit Item No.1. There is no warrant
to interfere with the Judgment and Decree of the Trial Court. Accordingly,
he would pray to dismiss the appeal and confirm the Judgment and Decree
of the Trial Court.
DISCUSSION:
23. Heard on either side. Perused the evidence available on record.
The following points arise for consideration in this Appeal Suit:
(i) Whether the additional construction in Suit Item No.1 was put up
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by the defendant or by Chandrasekaran ?
(ii) Whether Ex-B.9 - 'Kurichittu' and Ex-B.22 - Rent Receipts would
deprive the first plaintiff of her leasehold right over Suit Item No.1
and grant it exclusively to the defendant ?
(iii) Whether the Suit valuation and Court Fee paid is correct ?
(iv) Whether the plaintiffs are entitled to the relief of partition, rendition
of accounts and mesne profits?
24. There is no dispute with the relationship between the parties as
stated in the plaint. The Suit land and the old superstructure (tiled house as
it then was) belongs to the Bharani Abisekam Sri Arunachaleswarar
Swami Temple, Tiruvannamalai. Shanmuga Mudaliar obtained the
leasehold rights of the Suit land along with the said old superstructure
vide Ex-A.12 = Ex-B.27 - Sale Deed. The first plaintiff and the defendant
executed Ex-A.1 - Release Deed in favour of Chandrasekaran and Santha
Bai. Both of them died unmarried and intestate. There is no dispute with
the above facts. Further, there is no dispute with the date of demise of
Shanmuga Mudaliar, Kamalavathy, Chandrasekaran and Santha Bai as
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stated in the pleadings.
Point No.(i)
25. According to the plaintiffs, after the demise of Chandrasekaran
and Santha Bai, the first plaintiff and the defendant are each entitled to ½
share in the leasehold right over Suit Item No.1. The defendant's case is
that the defendant put up additional construction in the Suit land by
spending more than Rs.1,00,000/- and also has been paying ground rent
for Suit Item No.1.
26. Though the defendant pleaded that she put up additional
construction, no building plan or permission was marked. She marked Ex-
B.26 series containing plumbing work receipts, labour charge receipts and
construction materials invoice. Admittedly, Suit Item No.1 is situated in
the heart of Chennai city within the Greater Chennai Corporation limits.
When so, the defendant's claim that she constructed additional
superstructure in Suit land without any building plan or permission is not
plausible.
27. Mr.K.Mani, learned Counsel for the appellants would contend
that since the land belonged to temple, the temple authorities would not
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grant necessary permission and it is practically impossible to take up
construction after obtaining building permission. This Court is unable to
accept the argument for the reason that Ex-B.2 is the additional building
plan submitted by Shanmuga Mudaliar in 1954 and the same was
approved by the corporation authorities after collecting necessary fee
therefor vide Ex-B.3 - Receipt. Chandrasekaran had significant income
from his bank job and was the owner of Suit Item No.1 along with Santha
Bai at the material point of time viz., 1979, when the defendant claims to
have constructed the additional structure. In these circumstances, there is
heavy burden upon the defendant to prove that she put up additional
construction in the Suit land. The defendant has failed to examine any
independent evidence in this regard. There is no sufficient evidence
available on record to support her case that she put up the additional
construction. Hence, this Court is of the view that any additional
superstructure would have been put up by Chandrasekaran alone or
Chandrasekaran along with his co-owner - Santha Bai. Even while
assuming that the defendant put up additional construction in Suit Item
No.1, that does not confer her with right over Suit Item No.1, other than
what she is legally entitled to. Point No.(i) is answered accordingly.
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Point No.(ii)
28. Ex-B.22 containing a series of rent receipts in respect of Suit
land for the years between 1964 and 1999 stands in the name of Shanmuga
Mudaliar. From Ex-B.22, it could be seen that from 1967, the defendant
has been paying ground rent in the name of Shanmuga Mudaliar. It is an
admitted fact that the defendant was residing in the suit property along
with her sister - Santha Bai and brother - Chandrasekaran and that the first
plaintiff is residing elsewhere along with her husband. Further, from the
evidence of D.W.1, it is discerned that after the demise of Chandrasekaran,
the defendant has been receiving rent from the tenants and there is no
serious dispute with regard to it from the side of plaintiffs.
29. The defendant very much relies on Ex-B.9 - 'Kurichittu' and for
ease of reference, its contents are extracted hereunder:
“Muk;g ehs; Kjy; bfhz;L ,e;j fl;olk;
(No.8, irtKj;ijah Kjyp 3k; bjUtpy;.
,uhangl;il) vd;Dila ,isa jkf;if $yh$h
mtshy; fl;lg;gl;ljhYk; ,jpy; mtSf;F vy;yhtpj
mDgt ghj;jpak; cs;sjhYk;. mtis
,f;fl;ojj;jpd; K:yk; tUk; thlifia tR{ypj;J.
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thp kw;w guhkhpg;g[ ntisfSf;F ntz;oaij
vLj;J kPjj;ij mts; tpUg;gg;go bryt[ bra;ayhk;/
flt[s; jpUg;gzpf;F VnjDk; bryt[ bra;jhy;
kpft[k; crpjk;. ,e;j tPl;L thlifia ahUf;Fk;
gfph;e;J mspf;f ntz;oajpy;iy/ tPl;ila[k; gfph;e;J
bfhs;tij ehd; tpUk;gtpy;iy/”
30. Ex-B.9 - 'Kurichittu' does not bear any date or nomenclature. It
is written on a plain paper. It bears no witness signatures or names.
Despite denial on the side of the plaintiffs, the defendant did not send the
signature found in Ex-B.9 for expert opinion. To be noted, sample
signatures of Chandrasekaran are very well available on various exhibits.
Even while assuming that Ex-B.9 - 'Kurichittu' was executed by
Chandrasekaran, it alone will not confer any exclusive right over the suit
property to the defendant after his demise. Any immovable property can
be transferred between inter-vivos by any of the modes contemplated
under the Transfer of Property Act, 1882. After the lifetime of the owner,
the immovable property would be inherited as per the applicable law of
succession. If the owner wants to divert the mode of succession, then, he
or she can bequeath the property only by way of Will as contemplated
under Section 63 of Indian Succession Act, 1925 which shall be proved as
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per Section 68 of the Indian Evidence Act, 1872. Ex-B.9 cannot be termed
as a Will as there is no attestation. Ex-B.9 cannot be termed as a document
of conveyance/ Transfer Deed under the Transfer of Property Act, 1882, as
it is unstamped and unregistered. It cannot also be considered as a family
arrangement in the absence of stamp duty and registration. In short, Ex-
B.9 is not proved and even while assuming for a moment that it is proved,
it does not confer any right to the defendant over the Suit Item No.1.
31. Mr.K.Mani would rely on V.Durai's Case to contend that Ex-
B.9 is valid. In V.Durai's Case, a Kurichittu was relied on in a partition
Suit and the same was held to be admissible and valid evidence. However,
it has to be noted that partition is not a transfer under the Transfer of
Property Act, 1882. Ex-B.9 - 'Kurichittu' cannot be said to be a document
of conveyance as stated supra. Hence, V.Durai's Case is not applicable to
the instant case.
32. Ex-B.22 - rent receipts stand in the name of Shanmuga
Mudaliar, while Ex-B.23 - corporation tax receipt and Ex-B.24 - water tax
receipt stands in the name of Chandrasekaran. This will not in any manner
help the case of the defendants and affect the case of the plaintiffs. The
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A.S.NO.567 of 2016
fact that Santha Bai and Chandrasekaran were taken care of by the
defendant and not by first plaintiff, also does not affect the case of the
plaintiffs in any manner. It does not deprive the first plaintiff of her right
in Suit Item No.1. Point No.(ii) has been answered accordingly.
Point Nos.(iii) and (iv)
33. Admittedly, as per Ex-A.1, Chandrasekaran and Santha Bai were
owners of the leasehold right over Suit Item No.1. Santha Bai died
intestate on December 22, 1989 as a Hindu. Hence as per Section 15 (1)
(d) of the Hindu Succession Act, 1956, her ½ share in the leasehold right
shall devolve upon the plaintiff, the defendant and Chandrasekaran.
34. Upon the demise of Chandrasekaran intestate on April 10, 1999,
his 1/2 share along with the 1/6 share inherited by him from Santha Bai,
totally 4/6 share in the leasehold right over in Suit Item No.1 would
devolve equally upon the first plaintiff and the defendant as per Section 8
of the Hindu Succession Act, 1956. Thus the plaintiff and the defendant
would each be entitled to 1/6 + 4 / 12 share = ½ share in the leasehold
right over the Suit Item No.1. They are co-owners / co-sharers entitled to
equal share in Suit Item No.1. It is settled law that possession of one co-
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A.S.NO.567 of 2016
owner / co-sharer is deemed to be that of the other co-owner as well.
Hence, the first plaintiff is deemed to be in joint possession and enjoyment
of Suit Item No.1 along with defendant. Hence, the Court Fee paid under
Section 37 (2) of the Tamil Nadu Court-Fee and Suits Valuation Act, 1955
is correct and the Suit has been properly valued [See Neelavathi -vs-
N.Natarajan, reported in AIR 1980 SC 691]. Point Nos.(iii) is answered
accordingly in favour of the plaintiffs and against the defendant.
35. This Court in R.Rani -vs- R.Hemavathi, having the neutral
citation 2025:MHC:1581, reported in MANU/TN/2700/2025 held as
follows:
“35. It is settled law that in a Suit for partition,
Order XX Rule 12 of CPC cannot be applied. In a
Partition Suit covered under Order XX Rule 18 of
CPC, the further relief shall only be rendition of
accounts and not mesne profits. Without appreciating
the said aspect in the right perspective, the Trial
Court granted mesne profits, which is not the right
approach. The defendants are liable to render
accounts in respect of the income from the Suit Item
No.1 from the date of Suit up to complete partition
and delivery of possession [See Judgment of this
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A.S.NO.567 of 2016
Court in Babburu Basavayya -vs- Babburu
Guravayya, reported in AIR 1951 Mad 938 (FB), and
in Subba Reddiar -vs- Hazra Bibi, reported in AIR
1973 Mad 237]…”
36. In view of the above legal position, the plaintiffs are not entitled
to the relief of mesne profits but in view of the findings of this Court, they
are entitled to the relief to partition and rendition of accounts. The Trial
Court rightly held that the first plaintiff is entitled to ½ share in the
leasehold right over Suit Item No.1. There is no need to interfere with the
findings of the Trial Court. Point No.(iv) is answered accordingly.
37. There is no dispute with Madhukar's Case relied on the learned
Counsel for appellant. In Madhukar's Case the obligations of a First
Appellate Court were reiterated. This Court has carefully considered the
factual as well as the legal aspects of the case, considered the contentions
on either side and have rendered findings with reasons, in line with what
was reiterated in Madhukar's Case.
38. The other case laws relied on by the learned Counsel for
appellant are not relevant and not applicable to the facts and circumstances
of the case. In view of the above narrative, the Appeal Suit must fail as
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A.S.NO.567 of 2016
devoid of merits.
CONCLUSION:
39. Resultantly, the Order XLI Rule 27 Petition in CMP No.13573
of 2025 is dismissed as the additional documents sought to be received are
not necessary for deciding the matter. The Appeal Suit also stands
dismissed as devoid of merits. The Judgment and Decree of the Trial Court
is confirmed. Taking into consideration the relationship between the
parties, there shall be no order as to costs. Connected Civil Miscellaneous
Petition in CMP No.14251 of 2016 shall be closed.
09.10.2025
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
jai/pam
To
The Additional Judge,
City Civil Court, Chennai.
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A.S.NO.567 of 2016
R. SAKTHIVEL, J.
jai/pam
PRE-DELIVERY JUDGMENT MADE IN
APPEAL SUIT NO.567 of 2016
09.10.2025
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