High Court · 2025

S.No.514 of 2019IN THE HIGH COURT OF JUDICATURE AT MADRASReserved on09.07.2025Pronounced on 02.09.2025Coram:The Honourable Mrs. Justice K.GOVINDARAJAN THILAKAVADISecond Appeal No.514 of 2019Rani..Appellantversus1.Bakiya2.Sundaramoorthy .. RespondentsPrayer: Second Appeal is filed under Section 100 CPC, praying to set aside the judgement and decree dated 11.12.2018 made in A.S.No.9 of 2017 on the file of the Subordinate Judge of Mettupalayam confirming the judgement and decree dated 31.07.2015 in O.S.No.351 of 2009, on the file of the District Munsif Cum Judicial Magistrate Court, Mettupalayam.For Appellant: Ms.N.S.Keerthitha for M/s.Sarvabhauman AssociatesFor Respondents: Ms.G.Lavanya for Mr.T.Saikrishnan for R1 No appearance for R2 1 https://www.mhc.tn.gov.in/judis S.No.514 of 2019 JUDGMENTThis Second Appeal is preferred challenging the judgment and decree dated 11.12.2018 made in A.S.No.9 of 2017 on the file of Subordinate Judge, Mettupalayam, confirming the judgment and decree dated 31.07.2015 made in O.S.No.351 of 2009 on the file of the District Munsif Cum Judicial Magistrate, Mettupalayam. 2. The plaintiff is the appellant in the above suit. 3. For the sake of convenience, the parties herein after referred to their nomenclature before the trial Court.4. According to the plaintiff, the suit property belonged to one Sayammal who died intestate on 21.01.2003 leaving behind her only son Palanisamy and three daughters namely the plaintiff Rani, Rangammal and Pappathi. The said Rangammal and Pappathi had jointly executed a release deed thereby relinquishing their shares in the suit property. Thus, the 2 https://www.mhc.tn.gov.in/judis S.No.514 of 2019plaintiff and the Palanisamy are each entitled to half share. While so, the said Palanisamy died leaving behind his wife and son who are the defendants in the suit and the plaintiff demanded for partition since it was felt that it is inconvenient to be in joint possession. However, the defendant without coming forward for partition, sold the trees worth Rs.50,000/- from the suit property. Hence, the plaintiff issued a legal notice on 12.11.2009 for partition and also a legal notice for share in the sale proceeds. The same was received by the defendant and caused a reply notice with false allegations. Hence, the plaintiff was constrained to file the above suit for partition.5.The defendants together resisted the claim of the plaintiff stating that the sisters of Palanisamy jointly executed a release deed after receiving a sum of Rs.1000/- each in favour of Palanisamy. Therefore, the said Palanisamy is entitled to the share of Rangammal and Pappathi. Hence, the claim of the plaintiff for equal share is unsustainable. There is no cause of action for the suit and hence, prayed for dismissal of the suit.6.The trial Court partly decreed the suit holding that the plaintiff is entitled to 1/4th share in the suit property. Aggrieved by this, the plaintiff 3 https://www.mhc.tn.gov.in/judis S.No.514 of 2019preferred an appeal in A.S.No.09 of 2017 on the file of Sub Court, Mettupalayam. The First Appellate Court modified the judgement and decree of the trial Court by allotting 3/10th share to the plaintiff. Challenging the same, the present second appeal is preferred by the plaintiff.7.The following substantial question of law was raised in the memorandum of second appeal: Are the Courts below justified in misinterpreting the recitals of the Release Deed (Ex.B-5) executed by 2 sisters only in favour of the brother in exclusion of the Appellant?8.The learned counsel for the appellant / plaintiff submits that the Courts below erred interpreting the release deed Ex.B.2 as if the two sisters namely Rangammal and Pappathi released their shares only in favour of their brother Palanisamy alone. The First Appellate Court having found that the property is a Joint family property originally belonging to Nanjaiah gowdar which subsequently devolved upon his legal heirs consisting of five members after his demise. The First Appellate Court erred in coming to a 4 https://www.mhc.tn.gov.in/judis S.No.514 of 2019conclusion that release deed executed by two family members was only in favour of one of the member namely Palanisamy and not generally and that the said Palanisamy alone paid the releasors from his personal source of income and not from the general source of income. He would further submit that the burden of proof rest upon the defendants to prove that the source of income, for the consideration paid by Palanisamy to his two sisters at the time of execution of the release deed was out of his self earned income. The Courts below erroneously held that the onus is on the plaintiff to prove her case with regard to Ex.B2 release deed, especially when there is no averment in the written statement with regard to the source of income for consideration paid under Ex.B.2. The Courts below failed to consider that the income for consideration was paid by the said Palanisamy from the joint family income derived from the suit properties. Hence, the judgment and decree passed by this Courts below are liable to be set aside.9.On the other hand, the learned counsel appearing for the respondent / defendant submits that the recitals found in the release deed would clearly indicate that the two daughters of Nanjaiah gowdar executed the release 5 https://www.mhc.tn.gov.in/judis S.No.514 of 2019deed only in favour of Palanisamy. Therefore, the recitals of the release deed clearly indicates that two sisters have released their shares only to Palanisamy and therefore, the plaintiff cannot claim 1/2 share in the suit property.10.Heard on both sides and records perused.11.It is not in dispute that the said property originally belongs to Nanjaiah gowdar and after his death his wife and children inherited the property. It is also not in dispute that on 12.15.1971 in Ex.B.2 the two daughters of Nanjaiah gowdar namely Rangammal and Pappathi had executed a release deed thereby relinquishing their share in the suit property after receiving a sum of Rs.1000/-. The plaintiff being the other daughter has admitted that she was three years old on the date of execution of release deed. The release deed is marked as Ex.B.2 before the trial Court. On perusal of the said release deed, it is understood that two daughters after receiving a sum of Rs.1000/- each as consideration from Palanisamy had released their shares. The relevant portion of the release deed is extracted as hereunder:6 https://www.mhc.tn.gov.in/judis S.No.514 of 20197 https://www.mhc.tn.gov.in/judis S.No.514 of 20198 https://www.mhc.tn.gov.in/judis S.No.514 of 201912. Therefore, the recitals did not appear to be a general release deed and it is very clear that it conveys that the releasors have conveyed their shares to Palanisamy alone. Since, the plaintiff herself admitted that at the time of execution of release deed she was hardly three years old, therefore, it is not possible for the plaintiff to contribute fund for consideration paid to the other two daughters of Nanjaiah gowdar. Now, it has to be seen whether the said consideration was paid by Palanisamy out of his own income or income derived from the suit properties. Even as per the plaintiff's contention the said Palanisamy was working as fitter with separate income. Moreover, nothing is on record to show that the suit properties yielded surplus income and the same is utilized by the said Palanisamy for paying the consideration to his sisters. Inasmuch as the matter, it has to be presumed that the consideration has been paid from and out of the income of the said Palanisamy. The First Appellate Court came to the conclusion that the plaintiff is entitled only to 3/10th share in the suit properties. The relevant portion of the First Appellate Court is extracted 9 https://www.mhc.tn.gov.in/judis S.No.514 of 2019hereunder:Now, on to the share of the plaintiff, on the date of death of Nanjaiah gowder he had left behind his wife and four children. The property is said to belong to Nanjaiah gowder. There is not pleading or proof that the property is ancestral to Nanjaiah gowder. In such event the property to be construed as is separate property. Therefore all the five heirs would be entitled to 1/5th share in the property. Out of them two heirs had released in favour of one heir namely the son Palanisamy. Thus Palanisamy is become entitled 3/5th share in the property. Later the wife of Nanjaiah gowder namely Sayammal had died intestate. Even before her death two of her daughters had released all their right and went away. Therefore the Sayammal 1/5th share in the property is to be shared between the plaintiff and the son Palanisamy. Thus the plaintiff would be entitled to 3/10th share and the defendants being the legal heirs of Palanisamy would be entitled to 7/10th share. But the trial court without consideration the share of Sayammal had proceed to decide the rights of the parties.10 https://www.mhc.tn.gov.in/judis S.No.514 of 201913. There is no infirmity in the above findings of the First Appellate Court.14. Accordingly, this Second Appeal stands dismissed. The judgment and decree of the 1st Appellate Court is upheld. No costs. 02.09.2025vsnIndex: Yes/NoSpeaking order / Non-speaking orderTo1. The Subordinate Judge of Mettupalayam2.The Dist.Munsif Cum Judicial Magistrate, Mettupalayam.3.The Section Officer, VR Section, High Court, Madras11 https://www.mhc.tn.gov.in/judis S.No.514 of 2019K.GOVINDARAJAN THILAKAVADI,J.vsnPre-delivery judgment made inSecond Appeal No.514 of 201902.09.202512