Madras High Court
S. Geetha vs Yasoda Ammal on 10 October, 2025
S.A.No.1148 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 05.08.2025
Pronounced on 10.10.2025
CORAM
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
S.A.No.1148 of 2019
1. S. Geetha
2. S. Paranthaman
3. S. Parivallal
4. S. Renuka ...Appellants
Vs.
1. Yasoda Ammal
2. The Tamil Nadu Housing Board
Vellore Housing Unit, Vellore-9
Represented by its Executive Engineer
and Administrative Officer. ...Respondents
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
decree and judgment dated 22.04.2019 passed in A.S. No.62 of 2016 and
cross appeal, on the file of the I Additional District Court, Vellore,
modifying the Judgment and decree dated 31.08.2016 passed in
O.S.No.226 of 2010, on the file of the Subordinate Court, Vellore.
Page 1 of 17
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S.A.No.1148 of 2019
For Appellants : Mr. K. Sridhar
For Respondents : Mr. S. Rajendrakumar
for M/s. Norton and Grant for R1
Mr. C. Kalaichelvan for R2.
JUDGMENT
In this Second Appeal, challenge is made to the decree and
judgment dated 22.04.2019 passed in A.S. No.62 of 2016 and cross
appeal, on the file of the I Additional District Court, Vellore, modifying
the Judgment and decree dated 31.08.2016 passed in O.S. No.226 of
2010, on the file of the Subordinate Court, Vellore.
2. The appellants are the defendants 1 to 4 in O.S. No.226 of 2010
on the file of the Subordinate Court, Vellore. The 1st respondent, as
plaintiff, filed the above suit for mandatory injunction directing the 5th
defendant to issue the sale deed in favour of the plaintiff and defendants
1 to 4 and for partition of suit property into five equal shares and to
allot of one such share to the plaintiff, i.e., the northern portion of the
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plot measuring 800 sq. ft., with the house constructed by the plaintiff
under law of equity and for costs.
3. For the sake of convenience, the parties are referred to as per
their ranking in the trial court.
4. The case of the plaintiff is that her elder son K. Subramani was
working in the Police Department and he was allotted a plot in Phase 1 of
the Vellore Neighbourhood scheme, by the Tamil Nadu Housing Board.
Though the plot was allotted in the name of Subramani, the cost of the
plot was paid only by the plaintiff. It is further submitted that the
plaintiff is one of the legal heirs of the deceased Subramani and that as
Class-1 legal heir of the deceased Subramani, she is entitled to 1/5 share
in the suit property. While so, the 1st defendant, wife of the deceased
Subramani, after the demise of her husband surreptitiously got the plot
transferred in her name, which is illegal. Hence, the plaintiff was
constrained to file the present suit for the above reliefs.
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5. The claim of the plaintiff was resisted by the defendants 1 to 4
stating that the Tamil Nadu Housing Board had allotted Plot No.328 to
K.Subramani, husband of the 1st defendant and father of the defendants 2
to 4 in the year 1978 on monthly installment of Rs.237/-. The said
Subramani had been paying installments to the 5th defendant and had also
applied for No Objection Certificate from the Tamil Nadu Housing
Board for constructing a house measuring 625 sq. ft. on the northern side
of the plot. Since he was employed in the Police Department and was
posted in various places, he had authorised his brother-in-law
Purushothaman to look after the construction work. However, the entire
cost was paid by the said K.Subramani. In the year 1995, the said
K.Subramani died leaving behind him the defendants 1 to 4 as his only
legal heirs. After the demise of Subramani, the defendants have
requested the said Purushothaman to vacate the said house, but the same
was evaded by him. Thereafter, the defendants 1 to 4 have constructed
another house house in the said plot and are residing there. The
subsequent dues to the Tamil Nadu Housing Board was paid only by the
1st defendant and the allotment was transferred by the 5th defendant in
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favour of the 1st defendant after due verification. While so, at the
instigation of the said Purushothaman, the plaintiff sent a false notice to
the Tamil Nadu Housing Board claiming right over the above plot and
not to execute the sale deed in favour of the defendants. Thereafter, the
plaintiff has come out with the present suit for partition and injunction on
false grounds with an intention to continue the occupation of the house.
It is further submitted that the suit property was transferred in the name
of the 1st defendant by the 5th defendant in the year 1999 itself. However,
the said allotment was not challenged by the plaintiff for the past 10
years. Without challenging the allotment order, the plaintiff is not entitled
to seek for mandatory injunction directing the 5th defendant to include her
name in the sale deed. Hence, the suit is liable to be dismissed.
6. The 5th defendant has filed a written statement in which it is
stated that the suit plot was allotted to the deceased K. Subramani by the
Tamil Nadu Housing Board on 15.12.1978. Subsequent to the allotment,
the possession of the plot was handed over to him. The said Subramani
had also paid the cost of the plot and permission was granted to him for
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putting up a construction in the said plot in the year 1989 by the 5 th
defendant. The said Subramani died on 02.06.1995 and after his demise,
the 1st defendant submitted an application on 01.05.1996 along with legal
heir certificate. In the said certificate, the defendants 1 to 4 alone were
shown as the legal heirs of the deceased Subramani. Based upon the said
application, the allotment was transferred in the name of the 1st defendant
vide order dated 30.12.1999. Immediately, the 1st defendant applied for
the issuance of a sale deed. At that time, the plaintiff submitted a
representation stating that she is the mother of the deceased K.Subramani
and that she is also one of the legal heirs. The defendants, by
suppressing her existence, obtained a false legal heir certificate and
obtained the order of name transfer in favour of the 1st defendant. The
plaintiff also objected to the issuance of sale deed in favour of the 1 st
defendant as she also had right over the property. After the objection
made by the plaintiff, the 5th defendant obtained a legal opinion, in which
it is stated that the legal heir certificate is not valid and No Objection
Certificate by the minor defendants is also not valid and that the mother
of the deceased is also the class-1 legal heir of the deceased Subramani
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and that she is entitled to 1/5 share in the suit property. Based upon the
legal opinion, the 5th defendant issued a letter dated 03.07.2001 to the 1st
defendant directing her to obtain an order of the court for issuance of the
sale deed. But, till date, no order was produced by the 1st defendant. In
view of the above dispute between the plaintiff and the defendants 1 to 4,
the sale deed has not been issued. It is submitted that the 5th defendant
will abide by the decree of the Court and will not issue the sale deed until
the disposal of the suit.
7. In the additional written statement, the defendants 1 to 4 have
submitted that there are other properties available for partition in the
family and that the other co-sharers have not been added as party in the
present suit and hence the suit is bad for non joinder of necessary parties
and also for partial partition. In the reply statement filed by the plaintiff,
it is submitted that the properties described in the additional written
statement are joint family properties of the legal heirs of late Kannappan,
the husband of the plaintiff, who died in the year 2000 leaving behind
him his 4 sons and a daughter and the plaintiff herein as legal heirs
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under Hindu Law. Whereas, the suit property was allotted by the Tamil
Nadu Housing Board in favour of the deceased Subramani. Under these
circumstances, the question of impleading the other co-owners does not
arise. Hence the suit is neither bad for non joinder of necessary parties
nor for partial partition.
8. The trial court, upon considering the materials on record, vide
its decree and judgment dated 31.08.2016 dismissed the suit filed by the
plaintiff by stating that since the title has not been passed from the 5th
defendant to the legal heirs of the deceased Subramani, the plaintiff is not
entitled to claim her share in the suit property.
9. Assailing the judgment and decree passed by the trial court, the
plaintiff filed an appeal in A.S.No.62/2016 and a cross appeal was
preferred by the defendants 1 to 4 before the I Additional District and
Sessions Court, Vellore. The first appellate court allowed the appeal in
part by modifying the judgment and decree of the trial court by granting
mandatory injunction directing the 5th defendant to issue the sale deed in
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favour of the plaintiff and the defendants 1 to 4 in respect of the suit
property and confirming the dismissal order passed by the trial court in
respect of the prayer for partition. Aggrieved by this, the second appeal
has been preferred by the defendants 1 to 4.
10. The Second appeal has been admitted on the following
substantial question of law:
"Whether the suit filed by the plaintiff is maintainable when
Section 138 of the Tamil Nadu State Housing Board Act,
1961, bars the suit without pre-suit notice?"
11. Learned counsel for the appellants/defendants 1 to 4 submits
that the 5th defendant allotted the suit property in favour of the 1st
appellant/1st defendant under Ex.B1 and the 1st defendant alone paid the
major portion of the cost of the plot as per Ex.B9 to Ex.B12 after the
demise of her husband and therefore, the plaintiff has no locus standi to
claim any right in the suit property. He would further submit that mere
allotment does not confer any right to the allottee unless the conditions
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are complied in full and the 1st appellant /1st defendant after the demise of
her husband, who is the original allottee, had constructed the house in the
site allotted and also paid major portion of the cost of the plot. The first
appellate court erred in holding that the plaintiff and the defendants 1 to
4 are entitled to get the sale deed executed in their joint names when the
suit property was allotted in favour of the 1st appellant / 1st defendant
under Ex.B1. He would further submit that in the absence of sale deed
having been executed by the Tamil Nadu Housing Board in favour of
either of the parties, the prayer made by the plaintiff seeking for partition
and share in the suit property is misconceived and premature and not
maintainable in law. He would further submit that the plaintiff has not
issued any pre-suit notice under Section 138 of the Tamil Nadu State
Housing Board Act, 1961 (TN Act 17 of 1961). Hence, the suit is not
maintainable. In support of his contentions he relied on the following
judgments:
1. The Tamil Nadu Housing Board, Chennai and others
vs. Nolambur Residents Welfare Association, Chennai
reported in 2011 SCC Online Mad 2369.
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2. T. Amuthan Anthony vs. C.S. Balakrihnan & others
reported in 2015-1-L.W.921.
3. S. Rajammal vs. S. Ramaraj (died) represented by his
legal heirs, Tamil Nadu Housing Board, Coimbatore Unit
and others reported in 2010(3) MWN (Civil) 614.
3. Judgment of this Court dated 23.12.2016 in S.A.
No.1074 of 2010 (B. Muralidharan vs. The Chairman,
Tamil Nadu Housing Board, Chennai and others)
It is his further contention that the trial court has rightly decided that the
suit for partition is not maintainable under law in the absence of any sale
deed. While so, the first appellate court erred in holding that the plaintiff
and the defendants 1 to 4 are entitled to get the sale deed executed in
their names. Hence, he prayed for setting aside the judgment and decree
passed by the first appellate court.
12. Learned counsel appearing for the 1st respondent/plaintiff
would submit that the 1st respondent is the class-1 legal heir of the
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deceased K.Subramaniam and therefore, she is entitled for 1/5 share in
the suit property. On the basis of the false and fraudulent legal heir
certificate, the 1st defendant got the allotment transferred in her name.
On the basis of the objection raised by the 1st respondent/plaintiff, the 2nd
respondent / The Tamil Nadu Housing Board, stopped the execution of
sale deed in favour of the 1st defendant. The 1st respondent/plaintiff is
entitled to 1/5 share in the suit property. The first appellate court has
rightly directed the 2nd respondent/ The Tamil Nadu Housing Board to
execute the sale deed in favour of the plaintiff and the defendants 1 to 4,
which calls for any interference by this Court.
13. Heard on both sides. Records perused.
14. It is not in dispute that originally plot No.328 was allotted to
K.Subramani in the year 1978 and after his death, the allotment was
transferred in the name of the 1st defendant in the year 1999 based on the
application filed by the 1st defendant along with the legal heir certificate
in which the defendants 1 to 4 alone were shown as legal heirs of late
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K.Subramani. The plaintiff has filed the above suit for mandatory
injunction directing the 5th defendant to issue the sale deed jointly in her
favour and the defendants 1 to 4, since the she is also one of the class-1
legal heir of the deceased Subramani. It is also not in dispute that the 5 th
defendant/Tamil Nadu Housing Board has withheld the issuance of sale
deed on account of objection raised by the plaintiff. There is no doubt,
as per Section 8 of the Hindu Succession Act, the plaintiff being the
mother of the deceased Subramani, is one of the class-1 legal heir of the
deceased Subramani. All the legal heirs of the deceased Subramani are
entitled to share as per the law of succession applicable to the parties.
Admittedly, the said Subramani died as a Hindu. Hence, Hindu
Succession Act, 1956, would be the applicable law in this case. Hence,
all the legal heirs of late Subramani are entitled to get equal share in the
suit property. The law presumes that all the legal heirs of late Subramani
are co-owners in respect of the suit property. The plaintiff, being a co-
owner is entitled to be in possession of the suit property. However, only
after execution of the sale deed, the plaintiff is entitled to get her share.
Till such time the plaintiff is entitled to reside in the suit property as per
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the law of co-ownership. The first appellate court has rightly held that
the plaintiff and the defendants 1 to 4 are entitled to get the sale deed
executed in their joint names and accordingly directed the 5th defendant
to execute the sale deed in favour of the plaintiff and the defendants 1 to
4 in respect of the suit property.
15. With regard to pre-suit notice, the 5th defendant has not raised
any objection for non issuance of pre-suit notice by the plaintiff before
filing of the suit. Moreover, no issue was framed in this regard and the
5th defendant in their written statement has conceded that they will abide
the order of the Court. In the additional written statement filed by the
defendants, it is stated that the suit is bad for partial partition and non
joinder of necessary parties since joint family members were not included
in the suit. The above contention raised by the defendants 1 to 4 cannot
be accepted for the reason that the suit property was allotted by Tamil
Nadu Housing Board in favour of the deceased Subramani and therefore,
the same cannot be construed as a joint family property. Hence, the other
joint family members are not necessary parties in the above suit. The
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plaintiff has sought for partition only in respect of the property allotted in
favour of her son. Therefore, it cannot be stated that the suit is bad for
partial partition. Hence, the plaintiff is entitled to 1/5 share in the suit
property after execution of the sale deed in favour of the plaintiff and the
defendants 1 to 4. Therefore, I do not see any question of law much less
a substantial question of law in order to enable me to entertain this
appeal.
16. In the result,
i. The Second Appeal is dismissed. No costs.
ii. The decree and judgment dated 22.04.2019 passed in A.S. No.62
of 2016 and cross appeal, on the file of the I Additional District
Court, Vellore, is upheld.
10.10.2025
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
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To
1. The I Additional District Judge, Vellore
2. The Subordinate Judge, Vellore.
3. The Section Officer, VR Section, High Court, Madras.
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K.GOVINDARAJAN THILAKAVADI,J.
bga
Pre delivery judgment in
10.10.2025
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