CORAMTHE HONOURABLE MR v. K.Periasamy2.Palaniswamy3.Sornayal4.Muthusamy5.lakshmiammal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE:27-06-2007CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENSecond Appeal No.1541 of 19961.Kaliammal (died)2.Chidambaram3.Dhanalakshmi4.Rathinam5.Govindasamy.. Appellants[Plaintiff].(Appellants 2 to 5 are broughton records as Lrs of the deceasedsole appellant vide order of theCourt dated 22.11.2004 made inC.M.P.No.7343 of 2004)Versus1.K.Periasamy2.Palaniswamy3.Sornayal4.Muthusamy5.lakshmiammal.. Respondents[Defendants].Appeal against the judgment and decree, dated 21.02.1995, made inA.S.No.184 of 1993, on the file of the Additional Sub Court, Erode,confirming the judgment and decree of the Principal District Munsif Court,Erode, made in O.S.No.1133 of 1990, dated 22.10.1992.For Appellants : Mr.M.M.SundareshFor Respondents : No Appearance (R1 and R2)Mr.N.Manoharan (R4)J U D G E M E N TThe second appeal has been filed against the judgment and decree,dated 21.02.1995, made in A.S.No.184 of 1993, on the file of the Court ofSub Judge, Periyar District at Erode, confirming the judgment and decree,dated 27.10.1992, made in O.S.No.1133 of 1990, on the file of the Court ofPrincipal District Munsif, Erode. https://hcservices.ecourts.gov.in/hcservices/

2. The plaintiff in the suit O.S.No.1133 of 1990 is the appellantherein. The legal heirs of the plaintiff have been brought on record afterher death. The suit had been filed by the plaintiff praying for a decreeof:a) directing the defendants 1 to 3 not to execute any sale deedeither in favour of the defendants 4 and 5, or in favour of otherpersons, violating the provisions of Section 22 of the HinduSuccession Act.b) directing the defendants to execute such a sale deed in favourof the plaintiff for a price fixed by the Court under Section 22 ofthe Hindu Succession Act.c) directing the defendants their men and agents from in anymanner interfering with the peaceful possession and enjoyment of theplaintiff's schedule properties by means of a permanent injunction.d) directing the defendants to pay the costs of the suit to theplaintiff.3. It has been stated in the plaint that the plaintiff is the eldestdaughter of one Kudimikara Karuppana Gounder, who was owning the suitproperties along with certain other properties, as his separate property.The said Kudimikkara Karuppana Gounder had a wife by name Palaniammal. Theplaintiff's younger sister Sornayal is the 3rd defendant. The plaintiffhad two brothers, namely, Periyasamy and Palanisamy, who are the first andsecond defendants respectively. Kudimikkara Karuppana Gounder had diedintestate in the year 1983 leaving his wife, two daughters, namely, theplaintiff and the 3rd defendant and two sons, who are the first and seconddefendants in the suit. Since the sons of Kudimikkara Karuppana Gounderhad become addicted to drinks and were incapable of paying the debtsincurred by them, their mother Palaniammal, had to discharge their debts.In such circumstances, Palaniammal and her sons, namely, Periyasamy andPalanisamy had sold the eastern portion of the house properties in Thiru.Vee. Ka. Street at Veerappan Chattiram, that had originally belonged toKudimikkara Karuppana Gounder, to the 4th and 5th defendants in the suit.The claim of the plaintiff in the suit is only with regard to Door No.6 ofThiru. Vee. Ka. Street at Veerappan Chattiram having a measurement of 1038Sq.Ft, which is the western portion of the said property. Palaniammal, themother of the plaintiff, had died intestate in the year 1989. As per theHindu Succession Act, 1956, the plaintiff becomes a Class I heir of hermother's 1/3 rd share of the properties. The plaintiff has been living inthe said property at Veerappan Chattiram along with her daughter Easwari. 4. It has been stated by the plaintiff that even if it is held thatthere was no partition of the property at Veerappan Chattiram by metes andbounds and even if it is held that she had already executed the releasedeed with regard to her share in the properties, that had belonged to herfather, she would be entitled to the relief of pre-emption, as providedunder Section 22 of the Hindu Succession Act, 1956, regarding her mother'sshare. Hence, the plaintiff had filed the suit in O.S.No.1133 of 1990 on https://hcservices.ecourts.gov.in/hcservices/ the file of the Principal District Munsif Court, Erode.5. In the written statement filed by the 4th defendant, it has beenstated that the claims made by the plaintiff in the suit in O.S.No.1133 of1990 is false, frivolous and not maintainable, either in law or on facts.It has been stated that the contention of the plaintiff that the suitproperty is a separate property of the deceased Kudimikkara KaruppanaGounder is false. In fact, it is his ancestral property. The suit propertyhas always been enjoyed and treated as a joint family property ofKudimikkara Karuppana Gounder and his sons Periyasamy and Palanisamy, whoare the first and second defendants in the suit. It was also incorrect tostate that the first and second defendants were addicted to drinks andthat they were sick and unable to earn. 6. It is also incorrect to state that there were avyavaharaka debtsincurred by the first and second defendants and that their motherPalaniammal had discharged such debts. The plaintiff and the 3rd defendanthad willingly and voluntarily released their entire rights and title inthe joint family properties for valid consideration on 30.12.1986 . InI.A.No.1788 of 1990, filed before the Principal Court Erode, the plaintiffhad admitted in clear terms that the suit properties were ancestralproperties. In the release deed, dated 13.12.1986, the plaintiff and the3rd defendant have clearly admitted that the suit properties are theancestral joint family properties. In view of the said admission, theplaintiff is estopped from contending that the suit properties are theseparate properties of Kudimikkara Karuppana Gounder. In the sale deedsexecuted in favour of the 4th and 5th defendants over the eastern portion ofthe joint family property, Palaniammal had also signed. The plaintiff andthe 3rd defendant were aware of the sale deeds, but they had not questionedthem. In such circumstances, the plaintiff had no right or title in thesuit property and even if she had any share in it, she is estopped by herconduct from claiming any right by prescription. 7. It has also been stated that it is false to allege that theplaintiff is in possession and enjoyment of the suit property and that sheis living in the suit property along with her daughter. On 12.09.1989, thefirst and second defendants had divided their remaining joint familyproperties under a registered partition deed. On 18.04.1990, the firstdefendant had sold 12,105 sq.ft of the property situated on the westernend to one Annadurai and his wife Thulasimani. On 30.08.1990 the seconddefendant had sold his 1038 sq.ft of the property to the 4th defendant andhad also delivered vacant possession of the same. There was no building inthe portion that was sold to the 4th defendant. Only after the purchase ofthe property, the 4th defendant had put up a compound wall on the southernside of the property purchased by him. On the northern side there is acompound wall belonging to the owner of the adjacent property. The 4thdefendant is in possession and enjoyment of the property purchased by him.Since the plaintiff had released her rights by way of a release deed, shecannot claim any share in the said properties. Even if she had certain https://hcservices.ecourts.gov.in/hcservices/ rights, she had waived them. The suit is not maintainable as the plaintiffhad not paid the prescribed Court fees relating to the reliefs prayed forby her. The suit had been filed with the malafide motive of coercing thedefendants to come to the terms prescribed by the plaintiff. Therefore,the plaintiff is not entitled to the releifs prayed for in the suit.Hence, the suit is liable to be dismissed.8. Based on the rival contentions raised on behalf of the plaintiff aswell as the defendants, the trial Court had framed the following issuesfor consideration:i) Whether the plaintiff is entitled to the relief of pre-emption andpermanent injunction as prayed for:ii) What other reliefs she is entitled to .9. With regard to the issues framed the trial Court had found that thereliefs prayed for by the plaintiff in the suit cannot be granted, sincethe plaintiff had released her rights by way of a release deed, dated30.12.1986, marked as Ex.B-1. However, the plaintiff had not objected thesale of the suit property made in favour of the 4th defendant. Therefore,the plaintiff cannot claim the right of pre-emption, or a decree forpermanent injunction as prayed for in the suit in O.S.No.1133 of 1990.10. Aggrieved by the judgment and decree of the trial Court, dated22.10.1992, in O.S.No.1133 of 1990, the plaintiff had filed an appeal inA.S.No.184 of 1993, on the file of the Additional Sub Court, Erode. 11. After analysing the contentions raised on behalf of the partiesconcerned and based on the evidence on record, the lower Appellate Courthad framed the following points for consideration:i) Whether the appellant/plaintiff is entitled to the right of pre-emption and relief of permanent injunction as prayed for in the suit.ii) What other reliefs the plaintiff is entitled to.12. The lower Appellate Court had come to the conclusion that thetrial Court was right in dismissing the suit filed by the plaintiff. Thelower Appellate Court had found that the plaintiff, having released herrights in the suit property, had no right to claim pre-emption with regardto the said properties. Further, it was found that the plaintiff hadadmitted that she did not have the means to purchase the property inquestion. Further, the lower Appellate Court had found that the plaintiffhad not proved her claim that she was living in the suit property, eitherby documentary or oral evidence. Therefore, she was not entitled to therelief of interim injunction as claimed by her. In such circumstances, thelower Appellate Court had dismissed the appeal, by its judgment anddecree, dated 21.02.1995, made in A.S.No.184 of 1993, confirming thejudgment and decree of the trial Court, dated 22.10.1992, made inO.S.No.1133 of 1990. Hence the present second appeal. https://hcservices.ecourts.gov.in/hcservices/

13. The plaintiff in O.S.No.1133 of 1990 had filed the present secondappeal, on the various grounds stated in the memorandum of grounds ofappeal. The substantial questions of law raised by the appellants are asfollows:"(a) Have not both the Courts below committed in error oflaw in misunderstanding the scope of Section 22 of HinduSuccession Act and disentitling the Appellant/plaintiff.(b) Is the first Appellate Court committed the error of lawin holding appellant/plaintiff has waived her right on the entryby the third party.(c) Is the first Appellate Court entitled to consider theplea of waiver for the first time in the absence of pleading andissue."14. The learned counsel appearing on behalf of the appellantssubmitted that Palaniammal, mother of the plaintiff, had died intestate inthe year 1989. As per the Hindu Succession Act, 1956, the plaintiff is aClass I heir, having the right over her mother's 1/3 rd share of theproperties in question. It has also been contended that a tiled house hasbeen put up in the suit property and the plaintiff is living in the saidhouse, thereby having the possession and enjoyment of the property inquestion. In such circumstances, the plaintiff is entitled to the right ofpre-emption, as prayed for under Section 22 of the Hindu Succession Act,1956.15. The learned counsel appearing on behalf of the 4th respondent hadsubmitted that the plaintiff had no right over the suit property since shehad relinquished her rights in the suit property by way of a release deed,dated 30.12.1986. Further, the plaintiff had not questioned the sale ofthe properties effected earlier. Further, her claim regarding the right ofpre-emption cannot be considered, as the plaintiff could not showsufficient means to purchase the property in question. The Courts belowhave concurrently held that the claims made by the plaintiff have not beensufficiently proved and therefore, they cannot be sustained in the eye oflaw. 16. The Courts below had found that the claim of the plaintiff thatshe was living in the suit property has not been proved by the plaintiff.It was also held that there was no proof to show that the plaintiff hadthe means to purchase the property in question by exercising a right ofpre-emption, under Section 22 of the Hindu Succession Act, 1956. It hasalso been seen that the plaintiff had relinquished her rights by a releasedeed, dated 30.12.1986, marked as Ex.B-1. 17. In such circumstances, the lower Appellate Court, by its judgmentand decree dated 21.2.1995 made in A.S.No.184 of 1993 had confirmed thejudgment and decree of the trial Court, dated 27.10.1992, made inO.S.No.1133 of 1990, dismissing the suit filed by the plaintiff, who isthe appellant in the present second appeal. https://hcservices.ecourts.gov.in/hcservices/

18. On analysing the rival contentions raised on behalf of theplaintiff as well as the defendants and on analysing the judgment anddecree of the Courts below and the evidence available on record, thisCourt is of the considered view that no sufficient reason or cause hasbeen shown by the appellant in the present second appeal to set aside thejudgment and decree of the Courts below.19. In view of the findings of the trial Court, as well as the lowerAppellate Court, holding that the plaintiff was not entitled to the rightof pre-emption, under Section 22 of the Hindu Succession Act, 1956, thesubstantial questions of law raised in the present second appeal areanswered in favour of the defendants, who are the respondents in thepresent second appeal. In such view of the matter, the second appealstands dismissed. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.CshTo1. The Additional Sub Judge, Erode, 2. The Principal District Munsif, Erode.3. The Section Officer, VR Section,High Court, Madras.+ 1 CC To Mr. N.Manokaran, Advocate SR NO.38388Second Appeal No.1541 of 1996vrk[co]gp/13.11