Madras High Court
M.Murali vs Venkatalakshmi @ Valliammal on 17 October, 2025
THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment reserved on : 06.10.2025 Judgment pronounced on : 17.10.2025
CORAM
THE HON'BLE MR. JUSTICE P.B.BALAJI
A.S.No.588 of 2022
& CMP.No.16836 of 2023
1.M.Murali
2.N.Sathiavathi
3.N.Jayachandra
4.Pradeep
5.Vinoth
6.Purushotama Raju ..Appellants
Vs.
1.Venkatalakshmi @ Valliammal
2.Thulasi
3.M.Nagaraj
4.D.Krishna Naidu ..Respondents
Prayer: Appeal Suit filed under Section 96 of CPC, to set aside the judgment
and decree dated 31.10.2022 passed in O.S.No.368 of 2018 on the file of the I
Additional District Judge, Tiruvallur.
For Appellants : Mr.S.Abhijeet Krishna
For Respondents : Mr.Y.Jyothish Chander for R4
No appearance for RR1 to 3
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JUDGMENT
The plaintiffs in O.S.No.368 of 2018 on the file of the I Additional
District Judge, Tiruvallur, are the appellants herein.
2.I have heard Mr.S.Abhijeet Krishna, learned counsel for the appellants
and Mr.Y.Jyothish Chander, learned counsel for the 4th respondent. There is no
appearance on the side of the respondents 1 to 3.
3.The Plaint in brief:
One Krishnama Raju was the original owner of the suit property. He had
two daughters, namely the defendants 1 and 2. The plaintiffs 1 to 4 are children
of the defendants 1 and 3 and the plaintiffs 5 and 6 are sons of the defendants 2
and 4. The said Krishnama Raju died intestate in 1983, leaving behind his two
daughters, defendants 1 and 2, as his only legal heirs. The suit property is an
ancestral property and therefore, the plaintiffs are entitled to 1/8 th share in the
suit property. The 5th defendant had filed a suit in O.S.No.69 of 2007 before the
Principal District Judge, Tiruvallur, for specific performance of an agreement
dated 14.08.2006 as against the defendants 1 to 4 and the said suit was decreed
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on 29.04.2008. The appeal filed by the defendants in the said suit in A.S.No.12
of 2009 was also dismissed by this Court, however, with some modification.
The plaintiffs issued a notice to the defendants 1 to 4 seeking partition and
separate possession of their shares in the suit property. The plaintiffs not being
parties to the suit for specific performance are not bound by the decree passed
in the said suit and the specific performance decree would not bind the
plaintiffs' shares. The 5th defendant filed E.P.No.9 of 2017 for delivery of
possession of the suit property against the defendants 1 to 4 and it is only at that
stage that the plaintiffs became aware of the suit for specific performance and
having chosen to claim their right in the suit property by filing the suit for
partition.
4.The successful plaintiff in the suit for specific performance who
arrayed as 5th defendant filed his written statement. The said written statement
in brief:
The fact that the Krishnama Raju was the original and absolute owner of
the property is admitted. However, he executed a registered Will on 21.04.1980
in favour of the 1st defendant and the plaintiffs have no right, title or interest
over the suit property to seek partition. Despite the Will dated 21.04.1980, the
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wife of Krishnama Raju, namely Salammal along with her two daughters,
namely the defendants 1 and 2 entered into an agreement of sale with the 5th
defendant on 14.08.2006. As the said Salammal and the defendants 1 and 2 did
not come forward to fulfill their obligations, the 5th defendant had filed
O.S.No.69 of 2007 for specific performance. The suit was decreed on
29.04.2008. The 1st defendant challenged the decree in A.S.No.12 of 2009 and
the said appeal was also dismissed on 05.01.2012 and with the dismissal of the
First Appeal, the matter has attained finality. It is only pursuant to the decree
that the 5th defendant initiated execution proceedings for execution of the sale
deed in terms of the decree, and also for recovery of possession. The defendants
are children of the defendants 1 and 3 who have no right in the suit property
and without challenging the decree for specific performance, the suit itself is
not maintainable.
5.The defendants 1 to 4, who suffered the decree for specific
performance remained ex-parte.
6.Issues framed by the trial Court:
Based on the pleadings, the trial Court has framed the following issues:
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1.Whether the suit property is the ancestral property of
the plaintiffs as alleged?
2.Whether the decree passed in O.S.No.69 of 2007 and
A.S.No.12 of 2009 is not binding on the plaintiffs?
3.Whether the plaintiffs are not having any independent
rights over the suit property against the 1st and 2nd defendants
as alleged by the 5th defendant?
4.Whether the plaintiffs are entitled to claim 1/8th share
in the suit property as prayed for?
5.Whether the plaintiffs are entitled to the relief of
preliminary decree for partition of 5/8th share as prayed for?
6.Whether the plaintiffs are entiteld to the relief of
permanent injunction as against the 5th defendant as prayed
for?
7.To what other reliefs, the plaintiffs are entitled to?
7.Witnesses examined and exhibits marked before the trial Court:
On the side of the plaintiffs, the 1st plaintiff examined himself as P.W.1
and one Mr.Samu Raja was examined as P.W.2 and Exs.A1 to A6 were marked
and on the side of the defendants, the 5th defendant was examined as D.W.1 and
Exs.B1 to B4 were marked.
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8.Trial:
The trial Court found that the plaintiffs have no share in the suit property
and proceeded to dismiss the suit. Challenging the said judgment and decree,
the present appeal suit has been preferred.
9.Arguments of the learned counsel for the appellants:
Mr.S.Abhijeet Krishna, learned counsel appearing for the appellants
would contend that the specific contention as well as the defence taken by the
5th defendant was that the said Krishnama Raju had not died intestate and that
he had executed a registered Will. It is therefore contended by the learned
counsel for the appellants that when the said registered Will did not see the
light of the day and admittedly, not having been exhibited before the Court,
leave alone being marked and proved in the manner known to law, the trial
Court ought not to have held that the plaintiffs have no iota of right or interest
in the suit property. The learned counsel for the appellants would further submit
that even in the agreement of sale, which was the subject matter of the suit for
specific performance in O.S.No.69 of 2007, the defendants 1 and 2 had claimed
ownership of the suit property only as ancestral property. Therefore, the learned
counsel for the appellants states that, by birth, the plaintiffs have acquired a
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right in the suit property, which is admittedly an ancestral property and
ignoring the rights of the plaintiffs, the defendants 1 and 3 could not have
proceeded to deal with the entire suit property. He would also contend that the
decree of specific performance, in such circumstances, would not bind the
rightful entitlement and share of the plaintiffs. He would therefore pray for the
appeal suit being allowed and the preliminary decree being passed declaring the
rightful entitlement of the plaintiffs.
10.Arguments of the learned counsel for the respondents:
Per contra, Mr.Y.Jyothish Chander, learned counsel for the 4th
respondent, the successful plaintiff in the suit for specific performance would
contend that this is the second round of litigation and the present plaintiffs have
been set up by the unsuccessful defendants in the earlier round of litigation. He
would further state that even though it was claimed by the 4th respondent that
late Krishnama Raju had executed a Will in favour of one of his daughters,
namely the 1st defendant alone, both the daughters of Krishnama Raju with their
mother, Salammal joining the execution of the agreement of sale came forward
to sell the suit property to the 4th respondent for lawful consideration on the
basis of inheritance and the 4th respondent was constrained to approach this
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Court with a suit for specific performance, since the vendors did not honour
their commitments under the said sale agreement. He would therefore state that
merely because there is a reference to the Will executed by the original owner,
Krishnama Raju, it does not mean that the legal heirs cannot give a go by to the
said Will and deal with the property, as if the said Krishnama Raju died
intestate. He would further contend that when there were no male heirs born to
Krishnama Raju and Salammal and they were survived only with two
daughters, the property was taken by them absolutely and not by way of any
ancestral nucleus or right accruing under Section 6 of the Hindu Succession
Act. He would therefore state that the trial Court has rightly dismissed the suit
for partition and the appeal also deserves to be dismissed.
11.I have carefully considered the arguments advanced by the learned
counsel on either side.
12.Point for consideration:
The only point for consideration arising in this appeal is as to whether the
plaintiffs had any subsisting right over the suit property to claim partition?
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13.There is no dispute with regard to the relationship between the parties.
As already discussed, the property was absolutely owned by one Krishnama
Raju, who died leaving behind his wife, Salammal and two daughters who are
defendants 1 and 2 in the suit. It is claimed by the 4 th respondent, the 5th
defendant in the suit that Krishnama Raju had executed a Will in favour of the
1st defendant. However, admittedly, the said Will was not marked as a
document in the suit and there was no occasion for the Will being proved in a
manner known to law. However, dehors the said Will, the surviving legal heirs
of Krishnama Raju, namely his wife, Salammal and the defendants 1 and 2 have
entered into an agreement of sale with the 5th defendant/4th respondent herein.
Under the said agreement of sale, the entire suit property has been agreed to be
sold to the 5th defendant/4th respondent herein. Subsequently, the 4th respondent
has moved the competent Civil Court in O.S.No.69 of 2007 for specific
performance. The said suit was decreed and the judgment of the trial Court also
came to be confirmed by this Court in A.S.12 of 2009. However, considering
that 25 cents, forming part of the suit property has been sold in favour of the
third party, this Court excluded the 25 cents already alienated and directed the
defendants 1 to 4 in O.S.No.69 of 2007 to execute a sale deed in favour of the
remaining extent available in the suit property.
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14.The case of the plaintiffs is that the suit property is an ancestral
property. The only ground on which the plaintiffs claim independent right to
the suit property is that in the sale agreement executed by the defendants 1 and
2, along with their grandmother, the property has been described to be their
ancestral property. I find that the property was originally purchased by
Krishnama Raju in the year 1957 which is after the coming into force of the
Hindu Succession Act, 1956. Ex.A5 is a copy of the registered sale deed dated
10.11.1957. Krishnama Raju died much later in the year 1983 and succession to
his estate opened only in the year 1983 and Section 8 governs his intestate
succession, even assuming for a moment that the said Krishnama Raju died
intestate and did not leave behind any Will. The case of the plaintiffs is that the
property is an ancestral property hinges only on the averments set out in the
agreement of sale between the wife of Krishnama Raju and his two daughters
on one side and the 5th defendant/4th respondent on the other side. Mere
reference to the suit property as an ancestral property does not clothe the suit
property with the character of an ancestral property. The sale deed in favour of
the Krishnama Raju in the year 1957, his death in the year 1983 clearly give
rise to a presumption that the property is the self acquired property of the said
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Krishnama Raju and Section 8 of the Hindu Succession Act alone would
govern his succession. The plaintiffs have not been able to demonstrate that the
suit property is ancestral in nature and that they have a right by birth and
consequently are entitled to maintain the suit for partition.
15.The trial Court has found that in the sale deed executed in favour of
the third party, Peethambara Raju, conveying 25 cents, forming part of the suit
property, marked as Ex.B5 dated 19.04.2004, the vendors to the said sale deed
have referred to the Will executed by Krishnama Raju. The trial Court has also
found from the evidence that P.W.1, the 1st plaintiff had admitted in cross-
examination that his father, 3rd defendant has accompanied him to Court and
that they all being residing under one roof and therefore, the trial Court
rendered a finding that the defendants 1 to 4 have instigated the plaintiffs to
stall the execution proceedings initiated by the 5th defendant to execute the
decree for specific performance.
16.The trial Court has also found that the property is not an ancestral
property as claimed by the plaintiffs and there was no necessity for the
plaintiffs to join the execution of the sale agreement in favour of the 5th
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defendant/4th respondent herein. The trial Court has also found that the
properties are not ancestral properties of the plaintiffs and consequently, the
plaintiffs cannot contend that the decree was passed in O.S.No.69 of 2007 and
confirmed in A.S.No.12 of 2009 would bind the plaintiffs.
17.For a moment forgetting that there is a claim that Krishnama Raju
executed a Will in favour of the 1st defendant, one of his daughters alone, even
then he had no surviving male heirs, then the question of applying Section 6 of
the Hindu Succession Act does not arise. The property would only devolve on
both the surviving daughters and the wife alone, as their absolute entitlement
and share and would not be taken by them as ancestral property at their hands.
The agreement of sale has been entered into by the wife and both the daughters
of Krishnama Raju and the said legal heirs of Krishnama Raju have suffered a
decree for specific performance. The decree was challenged by the 1st defendant
alone who claims to be the sole beneficiary under the Will of Krishnama Raju.
This Court dismissed the Appeal Suit and confirmed the decree for specific
performance as well. Therefore, it is not open for the grandchildren to claim
that they have a right by birth in the suit property by merely mentioning in the
agreement of sale that the parties have got the property has been claimed by the
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legal heirs, wife and two daughters, as ancestral property. It can only be
interpreted to mean that it is not their property, but they got it from Krishnama
Raju. There is no inconsistency as alleged by the appellants in this regard.
Further, the fact that the property has already been directed to be sold to the 4th
respondent herein/5th defendant and the said decree has also become final.
18.As rightly observed by the trial Court, it is likely that the unsuccessful
defendants in the suit for specific performance have now set up the present
plaintiffs alleging that the suit property is an ancestral property and that they
are entitled to seek for partition. There is no merit in the appeal. The point is
answered accordingly in favour of the respondents and against the appellants.
19.In fine, the Appeal Suit is dismissed. There shall be no order as to
costs. Connected Civil Miscellaneous Petition is closed.
17.10.2025
Neutral Citation Case : Yes / No
Speaking / Non-speaking order
Index : Yes/No
ata
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P.B.BALAJI.J,
ata
To
The I Additional District Judge, Tiruvallur.
Pre-delivery judgment made in
17.10.2025
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