High Court · 2025

A.S.Nos.381 of 2014, 484 & 485 of 2013IN THE HIGH COURT OF JUDICATURE AT MADRASReserved on05.12.2024Delivered on08.01.2025CORAM:THE HONOURABLE MR. JUSTICE R.SUBRAMANIANANDTHE HONOURABLE MR. JUSTICE C.KUMARAPPANA.S.Nos.381 of 2014, 484 and 485 of 2013andC.M.P.Nos.7029, 12323 of 2023 & M.P.No.1 of 2014A.S.No.381 of 2014:Gopalakrishnan ...AppellantVs.1.Chellaperumal (Died)2.Umapathy3.Kesavaperumal4.Vijayakumar5.Balaji6.Sankari (Died)7.Mohanraj8.Yamuna Devi9.Mahesh Kumar10.Divya[R1 Died. R7 to R10 are brought on record as LRs of the deceased 1st respondent vide order of the Court dated 24.11.2022 made in CMP.No.20350, 20353 and 20354 of 2022.]----------------------Page No.: 4 of 26 https://www.mhc.tn.gov.in/judis A.S.Nos.381 of 2014, 484 & 485 of 2013[R6 w/o.R1 died. R7 to R10 already on record are recorded as LRs of deceased R6 vide order of Court dated 11.10.2023] ...RespondentsPrayer in A.S.No.381 of 2014 : Appeal filed under Section 96 of the Code of Civil Procedure read with Order XLI A(1) & (2) of the Code of Civil Procedure, praying to set aside the judgment and decree dated 31.07.2012 made in O.S.No.372 of 2004 on the file of the Additional District Judge, Kancheepuram District at Chengalpattu. A.S.No.484 of 2013:Chellaperumal (Died)2.Sankari3.Mohanraj4.Yamuna Devi5.Magesh Kumar6.Divya[A1 Died. A2 to A6 are brought on record as the LRs of the deceased 1st appellant vide order of the Court dated 24.11.2022 made in CMP.No.19261 of 2021][A2 wife of A1 died. A3 to A6 already on record are recorded as the LRs of the deceased A2, vide order of Court dated 11.10.2023.] ...AppellantsVs.----------------------Page No.: 5 of 26 https://www.mhc.tn.gov.in/judis A.S.Nos.381 of 2014, 484 & 485 of 2013Gopalakrishnan ...RespondentPrayer in A.S.No.484 of 2013 : Appeal filed under Section 96 of the Code of Civil Procedure read with Order XLI Rule 1 of the Code of Civil Procedure, praying to set aside the judgment and decree dated 31.07.2012 made in O.S.No.288 of 2005 on the file of the Additional District Judge, Kancheepuram District at Chengalpattu. A.S.No.485 of 2013:Chellaperumal (Died)2.Mohanraj3.Yamuna Devi4.Magesh Kumar5.Divya[A1 Died. A2 to A5 are brought on record as the LRs of the deceased 1st appellant vide order of the Court dated 24.11.2022 made in CMP.No.19512 of 2021] ...AppellantsVs.1.Gopalakrishnan2.Umapathy3.Kesavaperumal4.Vijayakumar5.Balaji6.Sankari (Died)----------------------Page No.: 6 of 26 https://www.mhc.tn.gov.in/judis A.S.Nos.381 of 2014, 484 & 485 of 2013[R6 wife of A1 died, A2 to A5 already on record, are recorded as the LRs of the deceased R6 vide order of Court dated 11.10.2023.] ...RespondentsPrayer in A.S.No.485 of 2013 : Appeal filed under Section 96 of the Code of Civil Procedure read with Order 41 Rule 1 of the Code of Civil Procedure, against the judgment and decree dated 31.07.2012 made in O.S.No.372 of 2004 on the file of the Additional District Judge, Kancheepuram District at Chengalpattu. Common Appearance: Mr.M.S.Subramanian for Mr.V.Chandrakanthan, for appellant in A.S.No.381 of 2014, for sole respondent in A.S.No.484 of 2013 & for 1st respondent in A.S.No.485 of 2013. Mr.N.C.Thirumalai Balaji for Mr.P.Subba Reddy, for Respondents 8 and 10 in A.S.No.381 of 2014, for Appellants 4 and 6 in A.S.No.484 of 2013 & for Appellants 3 and 5 in A.S.No.485 of 2013.In A.S.No.381 of 2014 R1 & R6 - Died, R4 - unclaimedR2, R3, R5, R7 & R9 - No appearanceIn A.S.No.484 of 2013 A1 - Died, A2, A3 & A5 - No appearanceIn A.S.No.485 of 2013 A1 & R6 - Died, A2 & A4 - No appearanceR2 to R5 - No appearance*******----------------------Page No.: 7 of 26 https://www.mhc.tn.gov.in/judis A.S.Nos.381 of 2014, 484 & 485 of 2013----------------------Page No.: 8 of 26 https://www.mhc.tn.gov.in/judis A.S.Nos.381 of 2014, 484 & 485 of 2013C O M M O N J U D G M E N T(Judgment of the Court was delivered by R.SUBRAMANIAN, J.) The above appeals arise out of a common judgment rendered by the trial Court in O.S.No.372 of 2004 and O.S.No.288 of 2005.2. While the appeals in A.S.Nos.484 and 485 of 2013 are by the 1st defendant in O.S.No.372 of 2004, the appeal in AS.No.381 of 2014 has been filed by the 1st plaintiff in the said suit. 3. In O.S.No.372 of 2004 the plaintiffs sought for partition and separate possession of the 5/12th share of the 1st plaintiff in the suit properties and for mesne profits. The suit in O.S.No.288 of 2005 was filed by the 1st plaintiff in O.S.No.372 of 2004 seeking a decree for injunction in respect of the properties that belonged to the 2nd plaintiff in O.S.No.372 of 2004 based on the Will executed by the 2nd plaintiff Chinna Kulandhai Ammal. 4. According to the plaintiffs in O.S.No.372 of 2004, the suit A schedule properties belonged to the family of one Rangasamy Pillai paternal grandfather of the 1st plaintiff and on his death the properties devolved on his only son Govinda Pillia, the father of the 1st plaintiff, 1st defendant and one daughter by ----------------------Page No.: 9 of 26 https://www.mhc.tn.gov.in/judis A.S.Nos.381 of 2014, 484 & 485 of 2013name Jagadhambal. The husband of Jagadhambal was impleaded as 2nd defendant. The minor children of the said Jagadhambal were impleaded as defendants 3, 4 and 5. 5. Claiming that the 'A' schedule property belonged to Rangasamy Pillai and his son Govinda Pillai who inherited the properties sold major portion of the property measuring about 1 acre 85 cents described as 'B' schedule with a remainder of 30 cents in 'C' schedule. According to the plaintiffs, the 1st defendant being the elder son was in the management of the properties. In 1987, a row of eight shops were constructed and the said building was known as Iyyappa Complex. In 1988, another row of seven shops were constructed and the building was named as Kowsalya Complex. In 1989 another six shops were constructed and the said building was named as Jayaraman Complex. In 1993, another set of seven shops were constructed and that building was known as Chinna Kulandhai Ammal Complex. All these shops were constructed in different portions of the 'C' schedule property. 6. It is also contended that Govinda Pillai son of Rangasamy Pillai was an astrologer and out of the income from his profession, he had acquired the lands described in 'D' schedule to the plaint. A house site was acquired by him ----------------------Page No.: 10 of 26 https://www.mhc.tn.gov.in/judis A.S.Nos.381 of 2014, 484 & 485 of 2013and a house was constructed and the same was shown in schedule 'E' to the plaint. The claim is that on the death of the father Govinda Pillai on 13.08.1995, the properties devolved on the plaintiffs, the 1st defendant and the defendants 2 to 5 being the heirs of the pre-deceased daughter of Govinda Pillai.7. It was also contended that the 'F' schedule properties were purchased by the 1st defendant for the benefit of the family. While item Nos.1 to 7 in 'F' schedule were purchased in the name of the 1st defendant, item Nos.8 and 9 were purchased in the name of the 1st plaintiff. The Item Nos.10 and 11 were purchased in the name of the 1st defendant's wife who was impleaded as the 6th defendant. 8. It is also claimed that a business in the name of Sankari Agencies was started by the 1st defendant from and out of the income of the joint family. Contending that the 1st defendant is adopting a hostile attitude and he has not been sharing the income with the other heirs, the suit for partition was laid. 9. It is also contended that Govinda Pillai even during his life time had executed a settlement deed dated 08.12.1982 in respect of the properties sown ----------------------Page No.: 11 of 26 https://www.mhc.tn.gov.in/judis A.S.Nos.381 of 2014, 484 & 485 of 2013in schedule 'D'. The claim of the defendants that the properties were orally partitioned on 03.11.1996 was also disputed. Thus, the 1st plaintiff would claim that the 1st plaintiff and 1st defendant are entitled to 5/12th share in the joint family properties and the 2nd plaintiff and the defendants 2 to 5 who are the heirs of the deceased daughter Jagadambal would be entitled to 1/12th share each. A claim was made for 1/4th share in the movables described in schedule 'H' and 'I'. 10. The suit was resisted by the 1st defendant contending that the description of the property in 'A', 'B' and 'C' schedule is not correct. The alleged entrustment of management with the 1st defendant was also denied. It was claimed that the Govinda Pillai was alone in management of the family properties till his death. It was further claimed by the 1st defendant that even during his life time Govinda Pillai had executed settlement deeds on 19.05.1988 in favour of the 1st plaintiff and the 1st defendant. Under the said settlement deeds he had gifted different portions of lands in S.No.151/2A to the 1st defendant and the 1st plaintiff. 11. It was also stated that while the building called as Iyyappa Complex constructed on the property was settled on the 1st defendant, the building called ----------------------Page No.: 12 of 26 https://www.mhc.tn.gov.in/judis A.S.Nos.381 of 2014, 484 & 485 of 2013as Kowsalya Complex constructed on the property was settled on the 1st plaintiff. Therefore, according to the 1st defendant the said two buildings are the separate property of the 1st defendant and 1st plaintiff and there is no question of any partition of the said property. 12. On 24.10.1989 another settlement deed was executed by Govinda Pillai in favour of 1st defendant and 1st plaintiff over which the two buildings Jayaraman complex and Chinna Kulandahi Ammal Complex were constructed. While Jayaraman Complex was allotted to the 1st plaintiff Chinna Kulandhai Ammal Complex was allotted to the first defendant. Therefore, there was no necessity for partition of the said properties. 13. It was also claimed that 'D' schedule property was partitioned on 3.11.96 in the presence of the Panchayatdhars and as per the decision of the Panchayatdhars 1 acre 10 cents were allotted to the 1st defendant. The other properties in 'D' schedule were allotted to the share of the 1st plaintiff. For the properties purchased by the father, he has executed a settlement deed dated 08.12.1982 in respect of 2 acres 15 cents and 'D' schedule property has already been divided between the 1st plaintiff and the 1st defendant. On the above pleadings the 1st defendant sought for dismissal of the suit.----------------------Page No.: 13 of 26 https://www.mhc.tn.gov.in/judis A.S.Nos.381 of 2014, 484 & 485 of 201314. Since the natural guardian of the minor defendants viz., the father Umapathy remained absent and exparte, a Court guardian was appointed for the minor defendants and he filed a written statement claiming share in the properties. 15. The 6th defendant filed a statement contending that item Nos.10 and 11 in 'F' schedule belong to her and the business of Sankari Agency was also started by her husband from the monies contributed by her by sale of her jewels and therefore the plaintiffs are not entitled to a share in the said properties. In respect of other properties the 6th defendant adopted the written statement of the 1st defendant. 16. Pending partition suit, the 2nd plaintiff viz., Chinna Kulandhai Ammal died on 04.10.2004. The 1st plaintiff filed a suit in O.S.No.288 of 2005 seeking an injunction in respect of the properties that stood in the name of the Chinna Kulandhai Ammal contending that she had executed a Will on 26.03.1998 bequeathing the properties to him and therefore the 1st defendant in the partition suit, the elder son of Chinna Kulandhai Ammal is not entitled to any right over the said properties. Contending that the 1st defendant is attempting to interfere ----------------------Page No.: 14 of 26 https://www.mhc.tn.gov.in/judis A.S.Nos.381 of 2014, 484 & 485 of 2013with the possession of the properties of the plaintiff, the 1st plaintiff in O.S.No.372 of 2004 sought for a decree for injunction. 17. The said suit was resisted by the 1st defendant contending that the documents have been created by the plaintiff and the genuineness of the Will was denied. It was also claimed that Chinna Kulandhai Ammal was only a name lender and the properties were purchased by the father of the plaintiff as well as the defendant. After the death of the mother, the 1st defendant sought for half share in the properties that stood in the name of Chinna Kolandai Ammal by adding them as K schedule properties. 18. Both the suits were taken up together and on the above pleadings, the learned trial Judge framed the following issues in the suits. O.S.No.288 of 2005:1) Whether the plaintiff has proved the validity and due execution of the Will dated 26.03.1998?2) Whether the plaintiff is in lawful possession and enjoyment of the suit properties?3) Whether the plaintiff is entitled to permanent injunction as prayed for?O.S.No.372 of 2004:1) Whether the first plaintiff is entitled for partition ----------------------Page No.: 15 of 26 https://www.mhc.tn.gov.in/judis A.S.Nos.381 of 2014, 484 & 485 of 2013of his ½ share in suit C, F, G, H, I schedule properties?2) Whether the first plaintiff is entitled for partition of his ½ share in the suit 'D' schedule properties?3) Whether the suit 'D' schedule properties were already divided?4) Whether the plaintiff is entitled for partition of his ½ share in the suit E and H schedule properties?5) Whether the suit items 10 and 11 of the suit 'F' schedule properties are the self acquired properties for the 6th defendant?6) Whether the suit 'K' schedule properties are the self acquired properties of the Chinnkuzhandai Ammal?7) Whether the first defendant is entitled to ½ share in the suit 'K' schedule properties?8) Whether the first plaintiff is entitled for the relief of rendering of accounts of the suit properties by the first defendant?9) Whether the first plaintiff is entitled for past and future income from the suit properties?10) To what other relief the first plaintiff is entitled?19. The trial Court on a consideration of the evidence on record concluded that the 'C' schedule properties have been deemed to be orally partitioned between the plaintiff and the 1st defendant and therefore the plaintiff is not entitled to a decree for partition of the 'C' schedule properties. ----------------------Page No.: 16 of 26 https://www.mhc.tn.gov.in/judis A.S.Nos.381 of 2014, 484 & 485 of 201320. In respect of the 'D' schedule properties the trial Court concluded that they remain undivided and the 1st plaintiff and the 1st defendant are entitled to equal share in the said properties. In so far as the 'E' schedule properties are concerned the same is available for partition and the plaintiff and the 1st defendant would be entitled to half share each. 21. As far as the 'F' schedule properties are concerned the learned trial Judge found that the item Nos.1 and 2 of the 'F' schedule properties are self-acquired properties of the 1st defendant. As regards item Nos.3 to 7 it is stated that the properties have been acquired by the State Government and hence, the Court found that they are not available for partition. It was also found that the properties in item Nos.10 and 11 belonged to the 6th defendant in her individual capacity. As regrades the suit item Nos.8 and 9 they were also held to be self- acquired properties of the 1st plaintiff. Hence, the conclusion was that 'F' schedule properties were not available for partition. 22. The trial Court also found that the 'G' schedule property viz., the business belongs to the 6th defendant and therefore there cannot be a decree for partition in respect of the business. As far as the 'H', 'I' and 'J' schedule properties which are movable properties the learned trial Judge found that they are not available for partition. ----------------------Page No.: 17 of 26 https://www.mhc.tn.gov.in/judis A.S.Nos.381 of 2014, 484 & 485 of 201323. On the whole the learned trial Judge concluded that the plaintiff would be entitled to half share in the suit 'D' and 'E' schedule properties and the suit in respect of 'C', 'F', 'G', 'H', 'I' and 'J' properties were dismissed. As regards 'K' schedule properties which belonged to the mother Chinna Kulandhai Ammal, the trial Court upheld the Will and found that the plaintiff would be entitled to the said properties. Therefore, the learned trial Judge granted a decree for injunction in respect of those properties while dismissing the suit for partition in respect of 'K' schedule properties. Having upheld the Will the trial Court granted a decree for injunction as prayed for in O.S.No.288 of 2005. 24. Aggrieved both the plaintiff and the 1st defendant have come up with the appeals in A.S.Nos.381 of 2014 and 484 of 2013 and the 1st defendant has also challenged the decree in O.S.No.288 of 2005, the injunction suit, in A.S.No.485 of 2013. 25. Since the 1st defendant in the suit Chellaperumal died pending appeal, ----------------------Page No.: 18 of 26 https://www.mhc.tn.gov.in/judis A.S.Nos.381 of 2014, 484 & 485 of 2013his wife and children were brought on record as the appellants 2 to 5 in A.S.Nos.484 and 485 of 2013. They were also brought on record as respondents 2 to 6 in A.S.No.381 of 2014. Tmt.Sankari, the 6th defendant in the suit for partition also died pending suit. The other legal heirs of the deceased 1st defendant Chellapurumal were recorded as her legal heirs.26. We have heard Mr.V.Chandrakanthan, learned counsel appearing for the appellant in A.S.No.381 of 2014 and sole respondent in A.S.No.484 of 2013, the 1st respondent in A.S.No.485 of 2013. Mr.Thirumalai Balaji, learned counsel for Mr.Subba Reddy, learned counsel for the respondents 7 to 10 in A.S.No.381 of 2014 and for the appellant Nos.3 to 6 in A.S.No.484 of 2013 and appellant Nos.2 to 5 in A.S.No.485 of 2013.27. The petition in C.M.P.No.7029 of 2023 has been filed to to receive the certified copy of the settlement deed dated 19.5.1988 executed by Govida Pillai in favour of the 1st plaintiff as additional evidence. The petition in C.M.P.No.12323 of 2023 has been filed by the appellant in A.S.No.381 of 2014 to produce certain documents for proof of his age. 28. In so far as the settlement deed, which is sought to be produced as an ----------------------Page No.: 19 of 26 https://www.mhc.tn.gov.in/judis A.S.Nos.381 of 2014, 484 & 485 of 2013additional document in C.M.P.No.7029 of 2023 is concerned, we have no difficulty in receiving the document, as the execution of the said document has been admitted by P.W.1 in his oral evidence. 29. As far as the documents covered by C.M.P.No.12323 of 2023 are concerned we do not think that they would be necessary for the purpose of disposing of this appeal, as the controversy had narrowed down in the appeal. 30. Hence, C.M.P.No.7029 of 2023 is allowed and C.M.P.No.12323 of 2023 is dismissed. The certified copy of the settlement deed is received as evidence and is marked as Ex.A66.31. Though the parties had a hard-fought trial and several documents were marked on both sides, the controversy in the appeal lies in a very narrow spectrum. 32. Mr.V.Chandrakanthan, learned counsel appearing for the appellant in A.S.No.381 of 2014 gives up his claim in respect of 'F', 'G', 'H', 'I' and 'J' schedule properties. As regards 'D' and 'E' schedule properties it is agreed that ----------------------Page No.: 20 of 26 https://www.mhc.tn.gov.in/judis A.S.Nos.381 of 2014, 484 & 485 of 2013the decree that has been granted by the trial Court will stand confirmed, as the defence of the 1st defendant that there was an oral partition of these properties has not been established with substantive evidence. 33. Upon hearing the learned counsel, the following points arise for determination in the appeal:1) Whether the trial Court was right in dismissing the suit in respect of the entire 'C' schedule properties?2) Whether the trial Court was right in upholding the Will of Chinna Kulandhai Ammal dated 26.03.1998 marked as Ex.A58?Point No.1:-34. Under Ex.B1 dated 08.12.1982 Govinda Pillai had settled the 'D' schedule properties in favour of his two sons, under Ex.B2 dated 08.12.1982 the said Govinda Pillai had settled the 'E' schedule properties in favour of his two sons. 35. In so far as the 'C' schedule properties are concerned there are four ----------------------Page No.: 21 of 26 https://www.mhc.tn.gov.in/judis A.S.Nos.381 of 2014, 484 & 485 of 2013buildings constructed therein viz., Iyyappa Complex, Kowsalya Complex, Jayaraman Complex and Chinna Kulandhai Ammal Complex. Under Ex.B3 dated 19.05.1988 the said Govinda Pillai had settled an extent of 4981 sq.f., which is described as item (a) in 'C' schedule property (Iyyappa complex) in favour of Chellaperumal, the 1st defendant in O.S.No.372 of 2004. Under Ex.B4 the settlement deed dated 24.10.1989 the said Govinda Pillai had settled an extent of 6618 sq.ft in S.No.151/2A and 151/2C in favour of his two sons. This document covers items (c) and (d) of 'C' schedule properties viz., Jayraman Complex and Chinna Kulandhai Ammal Complex. Under Ex.A66, the document which has been received by us in evidence, the said Govinda Pillai had settled an extent of about 4875 sq.f which is described as item (b) in 'C' schedule (Kowsalya Complex) in favour of Goplakrishnan, the 1st plaintiff in O.S.No.372 of 2004. 36. It could thus be seen that while 'D' and 'E' schedule properties have been settled on the sons equally the item (a) of 'C' schedule has been settled on the 1st defendant. Item (b) of 'C' schedule has been settled on the 1st plaintiff. Items (c) and (d) of 'C' schedule have been settled on both the sons jointly. Therefore, the trial Court has rightly granted a decree in favour of the plaintiff in respect of 'D' and 'E' schedule properties. However, in respect of 'C' schedule property, the trial Court has chosen to dismiss the suit in its entirety. ----------------------Page No.: 22 of 26 https://www.mhc.tn.gov.in/judis A.S.Nos.381 of 2014, 484 & 485 of 2013The same may not be correct. While items (a) and (b) of 'C' schedule property have been settled on each of the sons individually items (c) and (d) have been settled on the two sons jointly under Ex.B4. Therefore, a decree for partition will have to be granted in respect of the said properties also. 37. Hence, the decree of the trial Court is modified as follows:-There will be a preliminary decree for partition in respect of items (c) and (d) of 'C' schedule properties viz., Jayaraman Complex and Chinna Kulandhai Ammal Complex and 'D' and 'E' schedule properties in O.S.No.372 of 2004. In respect of the other properties the suit will stand dismissed. The first point is answered accordingly. Point No.2:-38. Though the 1st defendant has chosen to dispute the Will, the plaintiff has examined P.W.2, one of the attestors to the Will and his evidence regarding the execution of the Will has not been dis-credited in cross- examination. No doubt, the Will is in english and Chinna Kulandhai Ammal has afixed her thumb impression to the same, but, the Will itself contains a recital that it has been read over and explained to her in tamil. The document is also a registered instrument. We therefore do not think we can fault the trial Court for having believed the Will Ex.A58 dated 26.03.1998. Hence, the dismissal of the suit for ----------------------Page No.: 23 of 26 https://www.mhc.tn.gov.in/judis A.S.Nos.381 of 2014, 484 & 485 of 2013partition in respect of 'K' schedule properties is also confirmed. In view of our finding on the execution of the Will, the conclusion of the trial Court in the suit for injunction has to be sustained. Point No.2 is answered accordingly. 39. In fine, A.S.Nos.381 of 2014 and 484 of 2013 are partly allowed there will be a preliminary decree for partition of items (c) and (d) of 'C' schedule properties and 'D' and 'E' schedule properties subject matter of the suit in O.S.No.372 of 2004. The suit in O.S.No.372 of 2004 will stand dismissed in respect of items (a) and (b) of 'C' schedule properties and schedule 'F', 'G', 'H', 'I', 'J' and 'K'. The appeal in A.S.No.485 of 2013 will stand dismissed. The parties will bear their own costs. Consequently, the connected miscellaneous petition in M.P.No.1 of 2014 is closed. (R.SUBRAMANIAN, J.) (C.KUMARAPPAN, J.) dsa 08.01.2025 Document marked in the appeal:Ex.A66 – Certified copy of the settlement deed dated 19.05.1988. (R.SUBRAMANIAN, J.) (C.KUMARAPPAN, J.) dsa 08.01.2025 Index: No----------------------Page No.: 24 of 26 https://www.mhc.tn.gov.in/judis A.S.Nos.381 of 2014, 484 & 485 of 2013Internet: YesNeutral Citation : NoSpeaking order ToThe Additional District Judge, Kancheepuram District,Chengalpattu.----------------------Page No.: 25 of 26