Madras High Court
A.Mohanraj vs Athiyannan on 17 September, 2025
A.S.No.510 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.09.2025
CORAM
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
A.S.No.510 of 2011
and M.P.No.1 of 2011
A.Mohanraj ... Appellant
vs.
1.Athiyannan
2.Sengoda Gounder
3.Thangammal
4.Kandayee (Died) ... Respondents
(R1 and R3 recorded as LRs of the deceased R4. Memo
recorded. As per memo dated 06.03.2020 made in
A.S.No.510/2011)
PRAYER: This First Appeal filed under Section 96 of the Code of Civil
Procedure, to set aside the Decree and Judgment made in O.S.No.66 of 2008
by a decree and judgment dated 05.04.2010 by the Additional District
Judge/F.T.C.No.2, Salem.
For Appellant : Mr.G.Pugazhenthi
For R3 : Mr.P.Jagadeesan
For R1 and R2 : No Appearance
For R4 : Died
1/12
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A.S.No.510 of 2011
JUDGMENT
This First Appeal has been filed to set aside the decree and judgment
made in O.S.No.66 of 2008, dated 05.04.2010 on the file of the Additional
District Judge/F.T.C.No.2, Salem.
2. The 2nd defendant in a suit for partition is the appellant. The
respondents 3 and 4/plaintiffs filed a suit for partition seeking 2/3 rd share in
the suit property. The Trial Court granted preliminary decree for partition as
prayed for. Aggrieved by the same, the 2nd defendant has filed this appeal.
3. According to the plaintiffs/respondents 3 and 4, the suit property
were originally purchased by father of the 1st plaintiff and 1st defendant,
husband of the 2nd plaintiff and paternal grandfather of the 2nd defendant
namely Periyasamy Gounder under a registered Sale Deed dated
12.04.1972. The 2nd defendant is the son of the 1st defendant. The above
mentioned Periyasamy Gounder died intestate on 09.06.1990. Hence, as the
Class-I Heirs of Periyasamy Gounder, 1st plaintiff-his daughter, 2nd plaintiff-
his wife and 1st defendant-his son were entitled to 1/3rd share each. The
defendants 1 and 2 entered into a registered Partition Deed in respect of the
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suit property excluding the plaintiffs, who are all the legitimate sharers.
After acquiring knowledge about the Partition Deed between the defendants
1 and 2, the plaintiffs issued a Legal Notice on 27.02.2008 demanding their
share in the suit property. Since there was no reply, the plaintiffs were
constrained to file a suit for partition of 2/3rd share in O.S.No.66 of 2008 on
the file of the Additional District Judge/F.T.C.No.2, Salem.
4. The appellant/2nd defendant resisted the suit by filing a written
statement contending that the suit property was not self acquired property of
Periyasamy Gounder. According to the appellant/2nd defendant, the suit
property was purchased by Periyasamy Gounder by utilising the sale
proceeds of ancestral properties and hence, the suit property assumed the
character of joint family properties. It was also contended by the 2nd
defendant that there was a partition among the family members on
20.11.1991, whereunder, the 2nd plaintiff and 1st defendant agreed that the
properties described in the 'B' schedule to the Partition Deed shall be
allotted to the 2nd defendant. It was further contended that the 1st plaintiff's
marriage was celebrated in a grand manner by presenting jewels and other
articles. It was further pleaded that the plaintiffs have not been in joint
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possession and enjoyment of the suit property and they were ousted by
open, peaceful and continuous possession of the properties by the 2nd
defendant. On these pleadings, the 2nd defendant sought for dismissal of the
suit.
5. The Trial Court based on the pleadings of the respective parties,
framed the following issues for consideration:-
1) Whether the plaintiffs are entitled to obtain 2/3 shares in the suit
property as prayed for?
2) Whether the plaintiffs are entitled to obtain permanent injunction
as prayed for?
3) Whether D3 is not the necessary party to the suit?
4) Whether Periyasamy Gounder purchased the suit property from
out of the income of the ancestral property?
5) Whether the registered partition deed dated 12-12-91 is true and
enforceable?
6) Whether there is no cause of action for filing the suit?
7) To what relief, if any the plaintiffs are entitled to?”
6. Before the Trial Court, the plaintiffs 1 and 2 were examined as
PW.1 and PW.2. On their behalf, 7 documents were marked as Exs.A1 to
A7. The 2nd defendant was examined as DW.1 and 3 other witnesses were
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examined on their side as DW.2 to DW.4 and 8 documents were marked on
the side of the defendants as Exs.B1 to B8.
7. Based on the evidence available on record, the Trial Court came to
the conclusion that the suit property was the self acquired property of
Periyasamy Gounder and hence, the plaintiffs were entitled to 2/3rd share. A
Preliminary Decree for partition had been granted accordingly. The Trial
Court also granted decree for permanent injunction restraining the 2nd
defendant from alienating the share of the plaintiffs in the suit property.
Aggrieved by the said judgment and decree, the 2nd defendant has come by
way of this appeal.
8. The learned counsel appearing for the appellant would submit that
the brother of Periyasamy Gounder, who was arrayed as 3rd defendant in the
suit had been examined as DW.2 and he clearly deposed that Periyasamy
Gounder was allotted with 10 acres of ancestral properties and by selling
said properties, he had purchased the suit property. Therefore, according to
him, the suit property was purchased out of sale proceeds of ancestral
properties and hence, the Trial Court committed a serious error in coming to
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the conclusion that the suit property was self acquired property. The learned
counsel for the appellant further submitted that pending first appeal, the 2nd
plaintiff in the suit namely Kandayee, mother of 1st plaintiff and
1st defendant died intestate on 21.10.2016. The 1st respondent/1st defendant
and 3rd respondent/1st plaintiff were recorded as legal representatives of
deceased 4th respondent/2nd plaintiff as per the memo filed by the learned
counsel for the appellant dated 06.03.2020.
9. The learned counsel appearing for the appellant further submitted
that since the 2nd plaintiff died intestate pending first appeal, even as per the
decree passed by the Trial Court, 1/3rd share allotted to her, will go to her
Class-I Heirs namely the respondents 1 and 3. In that case, the 3 rd
respondent/1st plaintiff is entitled to 1/2 share in the suit property and the
remaining 1/2 share will go to the father of the appellant namely the 1st
respondent. In view of the change of subsequent circumstances, the
Preliminary Decree for Partition passed by the Trial Court requires
modification.
10. Though the respondents 1 and 2 were served and their names
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appeared in the cause-list, there is no representation for them.
11. The learned counsel appearing for the 3rd respondent/1st plaintiff
would submit that the appellant failed to lead any evidence to suggest that
the Periyasamy Gounder was allotted 10 acres of ancestral properties and
out of sale proceeds, he purchased the present suit property. Therefore, the
Trial Court was justified in coming to the conclusion that the suit property
was self acquired property of Periyasamy Gounder. He further submitted
that the 2nd plaintiff in the suit namely Kandayee died intestate pending first
appeal.
12. In the light of the pleadings of the parties and submissions made
by the learned counsel appearing for the appellant and 3rd respondent, the
following points are taken up for consideration in this appeal:-
(i) Whether the suit properties are self-acquired properties of Periyasamy
Gounder?
(ii) Whether the Preliminary Decree for Partition passed by the Trial
Court requires modification in view of death of 2nd plaintiff?
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Discussion on Point No.1:-
13. Though it was pleaded by the appellant/2nd defendant that the suit
property was purchased out of sale proceeds of ancestral properties allotted
to the share of Periyasamy Gounder, the appellant/2 nd defendant failed to
produce any documentary evidence to establish that Periyasamy Gounder
had possessed sufficient ancestral nucleus. In support of the said plea that
the suit property was purchased out of sale proceeds of ancestral properties,
the appellant examined the 3rd defendant in the suit namely Sengoda
Gounder as DW.2. In his evidence, he deposed that Periyasamy Gounder
was allotted with 10 acres of joint family properties in the Villages called
Valasu, Karipatty and Mettupatty. It was further deposed by him that the
property in Karipatty was sold and out of sale proceeds Periyasamy
Gounder purchased properties in Seshanchavadi Village. Subsequently, he
sold away those properties and out of sale proceeds, he purchased the suit
property. However, no documentary evidence has been produced before the
Court below to suggest that Periyasamy Gounder was allotted with 10 acres
of land in the joint family property. Likewise, no documentary evidence had
been produced before the Trial Court to prove that Periyasamy Gounder
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sold the ancestral properties and the sale proceeds were utilised for
purchasing the suit property.
14. In the absence of any documentary evidence, based on the oral
evidence of DW.2, who is also an interested party, we cannot come to a
conclusion that the suit property was purchased out of ancestral nucleus.
The Sale Deed stands in the name of Periyasamy Gounder in respect of the
suit property was marked as Ex.A1. Therefore, it is clear that the suit
property was purchased by Periyasamy Gounder in his name on 12.04.1972.
In the absence of any contra evidence, the Trial Court was justified in
coming to the conclusion that the suit property is self acquired property of
Periyasamy Gounder. The said finding reached by the Trial Court is based
on proper appreciation of evidence available on record and hence, it
requires no interference by this Court. The first point for consideration is
answered accordingly against the appellant. Therefore, this Court holds that
the suit property is self acquired property of Periyasamy Gounder.
Discussion on Point No.2:-
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15. Once this Court has come to the conclusion that the suit property
is self acquired property of Periyasamy Gounder, as the surviving legal heirs
of Periyasamy Gounder, the plaintiffs 1 and 2 and 1st defendant were
entitled to 1/3rd share each in the suit property. Therefore, there is nothing
wrong in the preliminary decree for partition passed by the Trial Court.
However, pending first appeal, the 2nd plaintiff-mother of 1st plaintiff and 1st
defendant died intestate. The said fact is not disputed by the learned counsel
appearing for the 3rd respondent. Infact, as per the memo filed before this
Court by the appellant dated 06.03.2020, both the 1st plaintiff and 1st
defendant who are arrayed as respondents 1 and 3 in this appeal were
recorded as legal representatives of deceased 4th respondent/2nd plaintiff.
16. Once it is not disputed that the 2nd plaintiff/4th respondent-
Kandayee died intestate, her 1/3rd share will automatically go to her Class-I
Heirs namely the respondents 1 and 3. Therefore, the preliminary decree for
partition of 1/3rd share each in favour of the plaintiffs passed by the Trial
Court requires modification in view of the subsequent death of one of the
sharer. Accordingly, this Court declares that the 1st plaintiff and 1st
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defendant are entitled to 1/2 share each in the suit property. The preliminary
decree for partition passed by the Trial Court is modified accordingly. The
Point No.2 is answered by passing preliminary decree of 1/2 share in favour
of the 1st plaintiff.
17. In view of the conclusion reached by this Court in the Point No.2,
the preliminary decree for partition passed by the Trial Court is modified by
granting 1/2 share in favour of 1st plaintiff and 1st defendant each.
18. In the result, the First Appeal is partly allowed to that extent. No
costs. Consequently, the connected miscellaneous petition is closed.
17.09.2025
Index : Yes/No
Speaking order : Yes/No
Neutral Citation : Yes/No
dm
To
The Additional District Judge/F.T.C.No.2,
Salem.
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S.SOUNTHAR, J.
dm
17.09.2025
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