High Court · 2024

S.A. No.357 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.06.2024CORAM:THE HON'BLE MRS.JUSTICE T.V.THAMILSELVIS.A. No.357 of 2024and C.M.P.No. 11104 of 2024S.M. Arumugham (Died)2 Bakkiyam3 A. Mohana Krishnan4 A. Kesavan( Appellants 3 and 4 brought on record as LRs of the Deceased 1st appellant vide C.M.P.No. 9797of 2022 in S.A.SR.No. 68945 of 2014).. Appellants Vs1 Malathi 2 Minor Vishnu Rep. by his guardian mother Malathi 3 V. N. ChenniappanThangamani (Died)5 V.C. Chennimalai6 Kanagavalli1/9 https://www.mhc.tn.gov.in/judis S.A. No.357 of 2024Devi (Died)8 N. Rangasamy9 R. Pradeep10 Dhivya Priya(Respondents 3, 5, 6 & 7 are LRs. of 4threspondent and they are already on recordMemo recorded)(Respondents 8 to 10 are brought on recordas LRs. of deceased 7th respondent vide order of court dated 28.08.2023 made in C.M.P.No.9798 of 2022 in S.A.SR.No. 68945 of 2014).. RespondentsPRAYER : Second Appeal filed under Section 100 of Code of Civil Procedure, to set aside the judgment and decree dated 17.12.2013 in A.S.No. 22 of 2013 on the file of the Principal District Judge, Erode modifying the judgment and decree made in O.S.No.383 of 2009 dated 30.11.2022 on the file of Subordinate Judge, Perundurai. For Appellants : Mr.T.Dhanasekaran2/9 https://www.mhc.tn.gov.in/judis S.A. No.357 of 2024JUDGMENTThe appellants herein are the 6th and 7th defendants in the suit have preferred this Second Appeal challenging the findings of the courts below in the Appeal Suit in A.S.No. 22 of 2013 on the file of Principal District Judge, Erode modifying the judgment and decree passed in O.S.No.383 of 2009 on the file of the Subordinate Court, Perundurai.2. For the sake of convenience, the parties are referred as per the ranking in the suit.3. Brief facts of the case is as follows :-Before the trial court, the respondents 1 and 2/plaintiffs filed a suit for the relief of partition in O.S.No.383 of 2009 on the file of Subordinate Judge, Perundurai. The plaintiffs are wife and daughter of one deceased Chidambaram. The 1st defendant is V.N.Chenniappan and the 3rd defendant V.N.Chennimalai is the son of 1st defendant, thereby, the defendants 1 and 3 and the said Chidambaram are undivided Hindu joint family members. The 4th and 5th defendants are daughters of 1st defendant and they have already 3/9 https://www.mhc.tn.gov.in/judis S.A. No.357 of 2024got married before the year of 1990. The first item of suit property is ancestral property of 1st defendant. The 2nd and 3rd item of suit properties were purchased by the 1st defendant, as a kartha of the family with the income derived from the ancestral property. Therefore, the plaintiffs claimed 1/3rd share as legal heirs of deceased Chidambaram in the ancestral property, which is specified as 1st item of suit properties. However, the relationship alone is admitted, but the other facts are denied. 4. The contention of 1st defendant is that he purchased item Nos.2 and 3 of the suit properties in the year of 1983 and 1992 and the same are his self-acquired property, but he has not produced any proof for the income derived from the ancestral properties. In respect of 1st item of suit property, there are other sharers, but their share was not calculated. Therefore, they have denied the plaintiffs share. 5. Before the trial court, both parties adduced evidence. Issues framed. In respect of 1st item of suit property, the plaintiffs contention is that the agricultural lands lying in R.S.No. 264/14 and 15 and R.S.Nos. 338/1 and 335/7 residential houses situated in the above survey numbers are the ancestral properties of 1st defendant. But the 1st defendant would 4/9 https://www.mhc.tn.gov.in/judis S.A. No.357 of 2024content that land in R.S.No.264 alone is ancestral property. But, as per the evidence of P.W. 1, Patta No.524, Patta No.246, 'A' register extract for R.S.No.264/11, 'A' register extract for R.S.No. 264/11, 'A' register extract in R.S.No.264/15 are marked as Ex.A1 to Ex.A5, which stands in the name of Nanjappa gounder, who is father of 1st defendant. But, there is no contra evidence on the side of plaintiffs to prove that only one survey No.264 alone is the ancestral property. Therefore, by relying Ex.A1 to Ex.A5, item No.1 of suit property is ancestral property, which consists of four survey Nos. 264, 264/11, 264/14 and 264/15. In respect of item Nos.2 and 3 of the suit properties, according to 1st defendant, it is a self-acquired property. So, the initial burden is binding on him to prove the same and he himself admits in his cross-examination that as a kartha of the family, he sold some of the properties to third party and he purchased the item nos. 2 and 3 of suit properties. It is admitted by D.W.1 that :- “FLk;g tUkhdj;ij bfhz;L FLk;gj;jpw;F jiyth; vd;w Kiwapy; th';fpaJ vd;why; rhpjhd;/ FLk;g Kiwapy; th';fg;gl;lJ vd;why; rhp”5/9 https://www.mhc.tn.gov.in/judis S.A. No.357 of 20246. On perusal of evidence, one V.C.Arunachalam, who was examined as D.W.2 on the side of defendant also admitted in cross-examination that item Nos.2 and 3 are purchased by 1st defendant as kartha of the Hindu joint family from the income derived from the joint family property. It is the evidence of D.W.2 that :-“1k; gpujpthjpjhd; Tl;L FLk;gj;jpd; jiyth; vd;why; rhp/ mjdhy; mth;jhd; FLk;gj;jpd; tu midj;J tut[ bryt[fis ftdpj;J te;jhh; vd;why; rhp/ Tl;L FLk;g jiyth; vd;w Kiwapy; mth; bgahpy; 2 fpiua';fs; th';fpdhh; vd;why; rhp/ 77k; tUlk; mk;kzpak;khs; vd;gtUf;Fk;. 1k; gpujpthjp Tl;L FLk;g brhj;Jf;fis fpiuak; bra;J bfhLj;jhh; vd;why; rhp/ mnj tUlj;jpy; ehfg;gd; kfd; brd;dpag;gd; 1k; gpujpthjpa[k; mth; kf;fSk; 1k; gpujpthjpf;F cz;lhd g{h;tPf brhj;Jf;fis fpiuak; bra;J bfhLj;jhh; vd;why; vdf;F bjhpahJ/ bjw;F njhl;l g{kp 2k; gpujpthjp ,Ue;jJ vdf;F bjhpa[k;/ rpjk;guk; ,we;j gpd;g[ K:j;j kUkfspd; eiffis ng';fpy; itj;J 2 kho fl;olk; fl;odhh;fs;/ nky; khoapy; brd;dpag;gDk;. fPH; jsj;jpy; rpjk;guk; FLk;gk; ,Ue;jhh;fs; vd;why; vdf;F bjhpahJ/ Muk;gj;jpy; 2 jwp nghl;lhh;fs; vd;why; rhp jhthtpy; fz;Ls;s brhj;Jf;fs; brd;dpag;gd; FLk;gj;fpw;F ghj;jpag;gl;l brhj;Jf;fs; vd;why; rhp/ 1k; gpujpthjpf;F vd;d tUkhdk; tUfpwJ vd;d bryt[ vd;W ehd; Mtzk; vJt[k; ghh;f;ftpy;iy/”6/9 https://www.mhc.tn.gov.in/judis S.A. No.357 of 2024Therefore, during the cross-examination of D.W.1 and 2, they admit that as a kartha of the family, 1st defendant sold the ancestral property and purchased item Nos.2 and 3 subsequently. But, there is no evidence to establish that these two properties were purchased by the 1st defendant out of his separate income. So, the evidence of D.W.1 and 2 is sufficient to conclude that item nos. 2 and 3 of suit properties are purchased with the income derived from the ancestral property. Therefore, the courts below have rightly held that all the suit properties are ancestral properties, in which, the plaintiffs are entitled to 5/30 share. Moreover, the 1st appellate judge held that daughter is also entitled for a share in the property. According to plaintiffs, she is entitled for 5/30 share and the defendants 1, 3, 4 and 5 are entitled for 6/30 share each. Against this finding, there is no document adduced on the side of plaintiff. Now, the defendants 6 and 7 have purchased the third item of suit properties from the 1st defendant through sale deed of the year 2009. Admittedly, the 1st defendant has no right to sell the entire extent of the suit properties and the same would not bind the plaintiffs as rightly observed by the trial court. Challenging the 7/9 https://www.mhc.tn.gov.in/judis S.A. No.357 of 2024findings of the court below, one of the purchaser had filed a suit. But, as discussed above, all the suit properties are ancestral properties in nature, in which, as a legal heir of deceased Chidambaram, plaintiffs are entitled to 5/30 share and remaining share, as discussed above in the first appeal, thereby, the entire extent of property in item nos.2 and 3 was sold by the 1st defendant in favour of this appellant and the other defendants are not binding the plaintiffs. So, there is no materials available to raise the substantial question of law, since because the vendors have no right and title over the property, thereby this Second Appeal is not maintainable. Accordingly, at the admission stage itself, this Second Appeal is dismissed as no merit. Findings of 1st appellate court is confirmed. No costs. Consequently, connected Miscellaneous Petition is closed. 13.06.2024Index: Yes / NoInternet: Yes / NoSpeaking/Non-speaking orderrppToThe Principal District Judge, Erode. 8/9 https://www.mhc.tn.gov.in/judis S.A. No.357 of 2024T.V.THAMILSELVI, J.rppS.A. No.357 of 2024 13.06.20249/9

S.A. No.357 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.06.2024CORAM:THE HON'BLE MRS.JUSTICE T.V.THAMILSELVIS.A. No.357 of 2024and C.M.P.No. 11104 of 2024S.M. Arumugham (Died)2 Bakkiyam3 A. Mohana Krishnan4 A. Kesavan( Appellants 3 and 4 brought on record as LRs of the Deceased 1st appellant vide C.M.P.No. 9797of 2022 in S.A.SR.No. 68945 of 2014).. Appellants Vs1 Malathi 2 Minor Vishnu Rep. by his guardian mother Malathi 3 V. N. ChenniappanThangamani (Died)5 V.C. Chennimalai6 Kanagavalli1/9 https://www.mhc.tn.gov.in/judis S.A. No.357 of 2024Devi (Died)8 N. Rangasamy9 R. Pradeep10 Dhivya Priya(Respondents 3, 5, 6 & 7 are LRs. of 4threspondent and they are already on recordMemo recorded)(Respondents 8 to 10 are brought on recordas LRs. of deceased 7th respondent vide order of court dated 28.08.2023 made in C.M.P.No.9798 of 2022 in S.A.SR.No. 68945 of 2014).. RespondentsPRAYER : Second Appeal filed under Section 100 of Code of Civil Procedure, to set aside the judgment and decree dated 17.12.2013 in A.S.No. 22 of 2013 on the file of the Principal District Judge, Erode modifying the judgment and decree made in O.S.No.383 of 2009 dated 30.11.2022 on the file of Subordinate Judge, Perundurai. For Appellants : Mr.T.Dhanasekaran2/9 https://www.mhc.tn.gov.in/judis S.A. No.357 of 2024JUDGMENTThe appellants herein are the 6th and 7th defendants in the suit have preferred this Second Appeal challenging the findings of the courts below in the Appeal Suit in A.S.No. 22 of 2013 on the file of Principal District Judge, Erode modifying the judgment and decree passed in O.S.No.383 of 2009 on the file of the Subordinate Court, Perundurai.2. For the sake of convenience, the parties are referred as per the ranking in the suit.3. Brief facts of the case is as follows :-Before the trial court, the respondents 1 and 2/plaintiffs filed a suit for the relief of partition in O.S.No.383 of 2009 on the file of Subordinate Judge, Perundurai. The plaintiffs are wife and daughter of one deceased Chidambaram. The 1st defendant is V.N.Chenniappan and the 3rd defendant V.N.Chennimalai is the son of 1st defendant, thereby, the defendants 1 and 3 and the said Chidambaram are undivided Hindu joint family members. The 4th and 5th defendants are daughters of 1st defendant and they have already 3/9 https://www.mhc.tn.gov.in/judis S.A. No.357 of 2024got married before the year of 1990. The first item of suit property is ancestral property of 1st defendant. The 2nd and 3rd item of suit properties were purchased by the 1st defendant, as a kartha of the family with the income derived from the ancestral property. Therefore, the plaintiffs claimed 1/3rd share as legal heirs of deceased Chidambaram in the ancestral property, which is specified as 1st item of suit properties. However, the relationship alone is admitted, but the other facts are denied. 4. The contention of 1st defendant is that he purchased item Nos.2 and 3 of the suit properties in the year of 1983 and 1992 and the same are his self-acquired property, but he has not produced any proof for the income derived from the ancestral properties. In respect of 1st item of suit property, there are other sharers, but their share was not calculated. Therefore, they have denied the plaintiffs share. 5. Before the trial court, both parties adduced evidence. Issues framed. In respect of 1st item of suit property, the plaintiffs contention is that the agricultural lands lying in R.S.No. 264/14 and 15 and R.S.Nos. 338/1 and 335/7 residential houses situated in the above survey numbers are the ancestral properties of 1st defendant. But the 1st defendant would 4/9 https://www.mhc.tn.gov.in/judis S.A. No.357 of 2024content that land in R.S.No.264 alone is ancestral property. But, as per the evidence of P.W. 1, Patta No.524, Patta No.246, 'A' register extract for R.S.No.264/11, 'A' register extract for R.S.No. 264/11, 'A' register extract in R.S.No.264/15 are marked as Ex.A1 to Ex.A5, which stands in the name of Nanjappa gounder, who is father of 1st defendant. But, there is no contra evidence on the side of plaintiffs to prove that only one survey No.264 alone is the ancestral property. Therefore, by relying Ex.A1 to Ex.A5, item No.1 of suit property is ancestral property, which consists of four survey Nos. 264, 264/11, 264/14 and 264/15. In respect of item Nos.2 and 3 of the suit properties, according to 1st defendant, it is a self-acquired property. So, the initial burden is binding on him to prove the same and he himself admits in his cross-examination that as a kartha of the family, he sold some of the properties to third party and he purchased the item nos. 2 and 3 of suit properties. It is admitted by D.W.1 that :- “FLk;g tUkhdj;ij bfhz;L FLk;gj;jpw;F jiyth; vd;w Kiwapy; th';fpaJ vd;why; rhpjhd;/ FLk;g Kiwapy; th';fg;gl;lJ vd;why; rhp”5/9 https://www.mhc.tn.gov.in/judis S.A. No.357 of 20246. On perusal of evidence, one V.C.Arunachalam, who was examined as D.W.2 on the side of defendant also admitted in cross-examination that item Nos.2 and 3 are purchased by 1st defendant as kartha of the Hindu joint family from the income derived from the joint family property. It is the evidence of D.W.2 that :-“1k; gpujpthjpjhd; Tl;L FLk;gj;jpd; jiyth; vd;why; rhp/ mjdhy; mth;jhd; FLk;gj;jpd; tu midj;J tut[ bryt[fis ftdpj;J te;jhh; vd;why; rhp/ Tl;L FLk;g jiyth; vd;w Kiwapy; mth; bgahpy; 2 fpiua';fs; th';fpdhh; vd;why; rhp/ 77k; tUlk; mk;kzpak;khs; vd;gtUf;Fk;. 1k; gpujpthjp Tl;L FLk;g brhj;Jf;fis fpiuak; bra;J bfhLj;jhh; vd;why; rhp/ mnj tUlj;jpy; ehfg;gd; kfd; brd;dpag;gd; 1k; gpujpthjpa[k; mth; kf;fSk; 1k; gpujpthjpf;F cz;lhd g{h;tPf brhj;Jf;fis fpiuak; bra;J bfhLj;jhh; vd;why; vdf;F bjhpahJ/ bjw;F njhl;l g{kp 2k; gpujpthjp ,Ue;jJ vdf;F bjhpa[k;/ rpjk;guk; ,we;j gpd;g[ K:j;j kUkfspd; eiffis ng';fpy; itj;J 2 kho fl;olk; fl;odhh;fs;/ nky; khoapy; brd;dpag;gDk;. fPH; jsj;jpy; rpjk;guk; FLk;gk; ,Ue;jhh;fs; vd;why; vdf;F bjhpahJ/ Muk;gj;jpy; 2 jwp nghl;lhh;fs; vd;why; rhp jhthtpy; fz;Ls;s brhj;Jf;fs; brd;dpag;gd; FLk;gj;fpw;F ghj;jpag;gl;l brhj;Jf;fs; vd;why; rhp/ 1k; gpujpthjpf;F vd;d tUkhdk; tUfpwJ vd;d bryt[ vd;W ehd; Mtzk; vJt[k; ghh;f;ftpy;iy/”6/9 https://www.mhc.tn.gov.in/judis S.A. No.357 of 2024Therefore, during the cross-examination of D.W.1 and 2, they admit that as a kartha of the family, 1st defendant sold the ancestral property and purchased item Nos.2 and 3 subsequently. But, there is no evidence to establish that these two properties were purchased by the 1st defendant out of his separate income. So, the evidence of D.W.1 and 2 is sufficient to conclude that item nos. 2 and 3 of suit properties are purchased with the income derived from the ancestral property. Therefore, the courts below have rightly held that all the suit properties are ancestral properties, in which, the plaintiffs are entitled to 5/30 share. Moreover, the 1st appellate judge held that daughter is also entitled for a share in the property. According to plaintiffs, she is entitled for 5/30 share and the defendants 1, 3, 4 and 5 are entitled for 6/30 share each. Against this finding, there is no document adduced on the side of plaintiff. Now, the defendants 6 and 7 have purchased the third item of suit properties from the 1st defendant through sale deed of the year 2009. Admittedly, the 1st defendant has no right to sell the entire extent of the suit properties and the same would not bind the plaintiffs as rightly observed by the trial court. Challenging the 7/9 https://www.mhc.tn.gov.in/judis S.A. No.357 of 2024findings of the court below, one of the purchaser had filed a suit. But, as discussed above, all the suit properties are ancestral properties in nature, in which, as a legal heir of deceased Chidambaram, plaintiffs are entitled to 5/30 share and remaining share, as discussed above in the first appeal, thereby, the entire extent of property in item nos.2 and 3 was sold by the 1st defendant in favour of this appellant and the other defendants are not binding the plaintiffs. So, there is no materials available to raise the substantial question of law, since because the vendors have no right and title over the property, thereby this Second Appeal is not maintainable. Accordingly, at the admission stage itself, this Second Appeal is dismissed as no merit. Findings of 1st appellate court is confirmed. No costs. Consequently, connected Miscellaneous Petition is closed. 13.06.2024Index: Yes / NoInternet: Yes / NoSpeaking/Non-speaking orderrppToThe Principal District Judge, Erode. 8/9 https://www.mhc.tn.gov.in/judis S.A. No.357 of 2024T.V.THAMILSELVI, J.rppS.A. No.357 of 2024 13.06.20249/9