Madras High Court
Udaya Kumar vs Eswara Vadivu on 7 August, 2020
Author: N.Seshasayee
Bench: N.Seshasayee
S.A(MD)No.277 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date: 07.08.2020
CORAM
THE HONOURABLE MR.JUSTICE N.SESHASAYEE
S.A(MD)No.277 of 2020
and C.M.P(MD)No.3400 of 2020
Udaya Kumar : Appellant/Appellant/Plaintiff
Vs.
1.Eswara Vadivu
2.Nagarajan
3.Poongothai
4.Thirugnana Sambantham
5.Poorn Chandrika
6.Gopinath : Respondents/Respondents/Defendants
PRAYER: Second Appeal is filed under Section 100 of C.P.C, against the
judgment and decree dated 08.04.2019 passed in A.S.No.19 of 2017 on the
file of the Principal District Judge, Thoothukudi, Thoothukudi District,
confirming the judgment and decree dated 12.04.2017 passed in O.S.No.
139 of 2008 on the file of the Sub Court, Thoothukudi, Thoothukudi
District.
For Appellant : Mr.Vinayak
for Mr.A.Thiruvadikumar
JUDGMENT
The plaintiff, who has lost his suit for partition successively before the courts below, has approached this Court.
http://www.judis.nic.in 1/6 S.A(MD)No.277 of 2020
2.The undisputed facts are that the suit property is comprised in Survey No. 460 B/2A and is said to have 89 cents. This property is stated to have been purchased under Ex.A.1 dated 22.07.1903 by one Subbammmal. After here demise, it devolved on her daughters namely, Thangammal and Chettichi Ammal. Each of them had half share in the suit property. On the demise of Thangamammal, her half share devolved on her only daughter Muthumalaiammal. Muthumalaiammal died some time in 1974 leaving behind her daughter, the first defendant and two other sons namely, Haridoss and Renganathan and yet another daughter Meenakshi.
3.The children of Muthumalaiammal and Chettichiammal entered into a partition in 1983 under Ex.A.2. In that partition, Western 44 cents was allotted to the share of the children of Muthumalaiammal. In this, some 20 cents was sold by her children namely, the first defendant and later's brothers and sisters to the fourth defendant. The balance left was 24.5 cents. While so, the first defendant's brother Haridoss and Renganathan have relinquished their right under Ex.A.3 in favour of their sisters namely, the first defendant and Meenakshi. In this, 24 1/2 cents on West of the entire Survey number Meenakshi was allotted Western last 12 cents and the first http://www.judis.nic.in 2/6 S.A(MD)No.277 of 2020 defendant was allotted 12.5 cents to East. The identity of the property is not in dispute.
4. While so, according to the plaintiff, under Ex.A.4 the first defendant has settled 3.5 cents to the plaintiff. According to the plaintiff, the suit property now measuring 9 cents is a joint family properties of the plaintiff and the defendants 2 and 3 and seeks partition of the said share.
5. The first defendant, the mother of the plaintiff has contended in her written statement that the property is not a joint family property inasmuch as it devolved to her along the female line.
6. The defendants 2 and 3 have also filed separate written statements.
7. The trial court dismissed the suit holding that the property is not joint family property and the First Appellate Court concurred with that view.
8. Their line of reasoning is straight forward, in that, since the property devolved on the first defendant through female line, no joint family as known in the Hindu Law can ever be created.
http://www.judis.nic.in 3/6 S.A(MD)No.277 of 2020
8. The learned counsel for the appellant sought to convince this Court that the plaintiff has filed O.S.No.335 of 2007 and this is the suit against his mother the fifth defendant and that suit was compromised wherein property was conceded as a joint family property. The compromise decree passed in O.S.No.335 of 2007 is marked as Ex.A.7.
9. On going through Ex.A.7, it is seen that the suit was laid by the present plaintiff that he should not be prevented from offering his respect to his father's graveyard and also for performing Guru Pooja. This dispute alone was compromised and there is no whisper that the first defendant has conceded that the properties involved in the suit as joint family property.
10. This Court does not find any error in the approach of the courts below. Accordingly, this Second Appeal is dismissed. In consequence, the judgment and decree dated 08.04.2019 passed in A.S.No.19 of 2017 on the file of the Principal District Judge, Thoothukudi, Thoothukudi District, confirming the judgment and decree dated 12.04.2017 passed in O.S.No. 139 of 2008 on the file of the Sub Court, Thoothukudi, Thoothukudi http://www.judis.nic.in 4/6 S.A(MD)No.277 of 2020 District stands confirmed. No costs. Consequently, connected miscellaneous petition is also dismissed.
07.08.2020
Index : Yes/No
Internet : Yes/No
CM
To
1.The Principal District Judge, Thoothukudi, Thoothukudi District.
2.The Sub Court, Thoothukudi, Thoothukudi District.
http://www.judis.nic.in 5/6 S.A(MD)No.277 of 2020 N.SESHASAYEE., J.
CM S.A(MD)No.277 of 2020 and C.M.P(MD)No.3400 of 2020 07.08.2020 http://www.judis.nic.in 6/6