Madras High Court
P.Krishnaveni vs M.Dhanalakshmiammal (Died) on 12 June, 2017
Author: G.Jayachandran
Bench: G.Jayachandran
A.S.(MD)Nos.107 of 2009 and 16 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the Judgment Date of Pronouncing the Judgment
31.01.2024 14.02.2024
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
and
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
A.S.(MD)Nos.107 of 2009 and 16 of 2012
A.S.(MD)No.107 of 2009:-
P.Krishnaveni ... Appellant
vs.
1.M.Dhanalakshmiammal (Died)
2.N.Krishnammal (Died)
3.M.Subbulakshmiammal (Died)
4.S.Shoba
5.S.Suresh
6.Nagalingam
7.Kanakammal
8.Murugesan
[R8 is already on record as LR. of the deceased
R3 vide order dated 12.06.2017, made in C.M.P.(MD)
Nos.2238 and 2239 of 2017]
9.Nagarathinam
10.Sundareswari
11.Ramalakshmi
12.Ravikumar (Died)
[R9 to R12 are brought on record as LRs. of the deceased
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A.S.(MD)Nos.107 of 2009 and 16 of 2012
R2 vide order dated 12.06.2017, made in M.P.(MD)Nos.
2 and 3 of 2014]
13.M.Sevathalingam
14.K.Amutha
15.Bhuvaneshwari
16.M.Venkateswaran
17.S.Nirmala Devi
18.M.Thenrajkumar
[R13 to R18 are brought on record as LRs. of the deceased
R3 vide order dated 12.06.2017, made in C.M.P.(MD)Nos.
2238 and 2239 of 2017]
19.R.Arunarani
20.Minor Naga Abirami
21.Minor Naga Karthika
22.Minor Naga Vishnuraj
[R20 to R22 are rep. through their mother R19 &
R19 to R22 are brought on record as LRs. of the
deceased R12 vide order dated 15.09.2022, made
in C.M.P.(MD)Nos.6347, 6348 & 6350 of 2021]
23.Renganathan
24.Balamohan
25.Manjuladevi
26.Sundar Rajan ... Respondents
[R23 to R26 are brought on record as LRs. of the deceased
R1, vide order dated 15.09.2022, made in C.M.P.(MD)
Nos.6339, 6342 and 6345 of 2021]
PRAYER : Appeal Suit filed under Section 96 of C.P.C., against the judgment
and decree, dated 06.02.2009, made in O.S.No.250 of 2004, on the file of the
Additional District Judge (Fast Track Court), Dindigul.
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A.S.(MD)Nos.107 of 2009 and 16 of 2012
For Appellant : Mr.M.R.Sreenivasan
For R4, R5, R9 to R11 & R13 to R26 : Mr.S.Anand Chandrasekar
for M/s.Sarvabhauman Associates
A.S.(MD)No.16 of 2012:-
1.M.Dhanalakshmiammal (Died)
N.Krishnammal (Died)
2.M.Subbulakshmiammal (Died)
3.Shoba
4.Suresh
5.S.Nagalingam
6.Nagarathinam
7.Ravikumar (Died)
8.Sundareswari
9.Ramalakshmi
10.M.Sevanthalingam
11.K.Amutha
12.E.Bhuvaneshwari
13.M.Venkateswaran
14.S.Nirmala Devi
15.M.Thenrajkumar
[A10 to A15 are brought on record as LRs. of the deceased
A2 vide order dated 12.06.2017, made in C.M.P.(MD)No.
2243 of 2017]
16.R.Arunarani
17.Minor Naga Abirami
18.Minor Naga Karthika
19.Minor Naga Vishnuraj
[A17 to A19 are rep. through their mother A16 &
A16 to A19 are brought on record as LRs. of the
deceased A7 vide order dated 15.09.2022, made
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A.S.(MD)Nos.107 of 2009 and 16 of 2012
in C.M.P.(MD)Nos.2461 to 2463 of 2021]
20.Renganathan
21.Balamohan
22.Manjuladevi
23.Sundar Rajan ... Appellants
[A20 to A23 are brought on record as LRs. of the deceased
A1, vide order dated 15.09.2022, made in C.M.P.(MD)
No.61 of 2021]
vs.
1.Krishnaveni
2.Kanakammal
3.Murugesan (Died) ... Respondents
[Memo dated 09.08.2023 in U.S.R.No.26672 is recorded
as R3 died and A10 to A15, who are already on record,
are recorded as LRs. of the deceased R3, vide order dated
27.11.2023, made in A.S.(MD)Nos.16 of 2012 & 107 of 2009]
[Cause title accepted vide order dated 27.01.2012 made in
M.P.(MD)No.1 of 2012 in A.S.(MD)SR.No.48221 of 2010]
PRAYER : Appeal Suit filed under Section 96 of C.P.C., against the judgment
and decree, dated 06.02.2009, made in O.S.No.250 of 2004, on the file of the
Additional District Judge (Fast Track Court), Dindigul.
For Appellants : Mr.S.Anand Chandrasekar
for M/s.Sarvabhauman Associates
For R1 : Mr.M.R.Sreenivasan
For R2 : No Appearance
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A.S.(MD)Nos.107 of 2009 and 16 of 2012
COMMON JUDGMENT
DR.G.JAYACHANDRAN, J.
and C.KUMARAPPAN, J.
Suit for partition and rendition of accounts with interest was preferred by four daughters of Sundararaju Asari, who had five children through his two wives and died on 24.05.1963 [Three daughters born through the first wife and a son and daughter born through the second wife]. The plaintiffs are the daughters of the first and second wife. The first defendant is widow of Perumal, who is the deceased son of Sundararaju Asari. The defendants 2, 3 and 4 are the partners of deceased Perumal in the business under the name 'Abirami Theatre'. In the said partnership firm, the deceased Perumal as one of the partners, has 1/4 share and hence, the same has been included in the suit claiming that the share of Perumal in the Theatre is also to be divided among the legal heirs of Sundararaju Asari.
2. The plaintiffs claimed that at the time of their father's death, Perumal was minor and therefore, the estate was managed by the fourth defendant, who is 5/25 https://www.mhc.tn.gov.in/judis A.S.(MD)Nos.107 of 2009 and 16 of 2012 none other than the husband of the third plaintiff. After attaining majority, Perumal took the management of the estate and was paying some amount to his sisters from and out of the income derived from the common property. The investment in the partnership firm was made by Perumal from and out of the income derived from the common property. Since the suit for dissolution of partnership firm has already been initiated by the third defendant and the same is pending in A.S.No.737 of 1993, on the file of the High Court of Madras, the plaintiffs have reserved their right to work out the remedy in respect of the alleged share of Perumal in the partnership firm and the Theatre by name, M/s.Abirami Theatre, which is more fully described in II Schedule of the plaint.
3. The case of the plaintiffs is that, Meenakshi Ammal, the second wife of Sundararaju Asari died on 23.02.1997, leaving behind her son Perumal [husband of the first defendant] and her daughter [4th plaintiff] as her legal heirs. Therefore, in respect of the share of Meenakshi Ammal, her son and daughter are entitled to 1/2 share each. In such circumstances, when Perumal died on 27.01.1998, his wife, the first defendant being the sole legal heir of Perumal has to inherit only the share of Perumal in the estate. However, the entire property 6/25 https://www.mhc.tn.gov.in/judis A.S.(MD)Nos.107 of 2009 and 16 of 2012 has been managed by the first defendant herself on her behalf and on behalf of other co-sharers without rendering account for the income derived from the family property and the partnership firm. Therefore, after making a demand for partition, suit has been filed claiming each 1/6 share in the first schedule property, which belongs to Sundararaju Asari. Further, on the demise of Meenakshi Ammal, the second wife of Sundararaju Asari, her 1/6 share has to be divided among her son Perumal and her daughter, the fourth plaintiff equally, i.e., 1/12 each and regarding the second schedule property, which is a Theatre in the name of partnership firm, in which, Perumal and the defendants 2 to 4 have 1/4 share each, the plaintiffs have made a claim of 3/4 share together in the 1/4 share of Perumal i.e., 1/16 share of each of the three plaintiffs and 1/16 share of the first defendant being the widow of Perumal.
4. The suit was contested by the first defendant on the ground that the suit is not maintainable and the plaintiffs are not entitled for any share in the properties or rendition of accounts for the income derived from these properties. The second plaintiff is the wife of the second defendant and the third plaintiff is the wife of the fourth defendant. The suit has been engineered by the defendants 7/25 https://www.mhc.tn.gov.in/judis A.S.(MD)Nos.107 of 2009 and 16 of 2012 2 to 4 through their wives, who are the sisters of deceased Perumal [the husband of the first defendant]. The property does not belong to Sundararaju Asari and it is not correct to say that on the demise of Sundararaju Asari, Perumal got the property and managing the estate on behalf of the other sharers particularly, the plaintiffs. Sundararaju Asari died in the year 1963 while Perumal was a minor, leaving his second wife and five children born to two wives. A partition was effected among the family members on 13.06.1963, in which, all the legal heirs of Sundararaju Asari were parties. After effecting division of the properties through a registered partition deed, the plaintiffs had no right to claim any share in the suit schedule properties. In the partition deed, the defendants 2 and 4, who are the husband of plaintiffs 2 and 3, are attestors and they are aware of the partition, which has come into effect soon after it's execution. Having taken the share in the property as per the partition deed and enjoying it for themselves, suppressing the said fact deliberately, the partition suit has been filed. The divided family members after taking their shares as per the partition deed, have no locus to institute a partition suit again. Therefore, the suit is liable to be dismissed for suppression of facts.
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5. The first defendant has also stated that the marriage of the fourth plaintiff as per their family status was conducted at the expenses of the first defendant's husband. When the fourth plaintiff wanted to purchase a house, Rs.40,000/- was paid to her by Perumal and Meenakshi Ammal. On receipt of the money, the fourth plaintiff executed a release deed on 29.11.1981, releasing all her interest in the family properties. She has promised not to claim any of the family properties for herself or her legal heirs. In the said release deed, the husband of the second plaintiff, who is the second defendant, is one of the attesting witnesses. After the partition deed, dated 18.06.1963 and the release deed dated 29.11.1981, executed by the fourth plaintiff, Perumal and Meenakshi Ammal have become absolute and exclusive owners of the properties allotted to them in the partition deed.
6. The second item in the first schedule property purchased by Meenakshi Ammal out of her own funds under registered sale deed dated 22.08.1968, for a consideration of Rs.20,000/-. The said property has been developed by the first defendant's husband after demolishing the existing building in the said property. A shopping complex was constructed therein by Perumal in the year 1984 from 9/25 https://www.mhc.tn.gov.in/judis A.S.(MD)Nos.107 of 2009 and 16 of 2012 his own fund after 13 years of the demise of Sundararaju Asari. During his life time, Perumal has executed a Will on 14.12.1988, bequeathing his interest in the properties in favour of the first defendant. The registered Will duly executed and attested. Likewise, the property described under Plaint Schedule - II is the property of a partnership firm started by the first defendant's husband in the year 1978, 15 years after the death of Sundararaju Asari. None of the family funds was used for starting the partnership firm. The Theatre was constructed in the year 1984, 21 years after the death of Sundararaju Asari and therefore, claiming share in the partnership firm and the property of the partnership firm as legal heirs of Sundararaju Asari, is unsustainable. A suit filed 40 years after the death of Sundararaju Asari and several years after the partition, is hopelessly barred by limitation.
7. The third defendant in her written statement had contended that the suit against her in respect of partnership business that is Schedule – II property is not maintainable. Abirami Theatre is a partnership business and Schedule – II in the plaint is the property of the partnership firm. Therefore, the plaintiffs have no right, title and interest over the property. The plaintiffs have never claimed any 10/25 https://www.mhc.tn.gov.in/judis A.S.(MD)Nos.107 of 2009 and 16 of 2012 interest in the business at any point of time as joint family members of Late.Perumal. The third defendant filed a suit in O.S.No.226 of 1986 before the Sub Court, Dindigul, for dissolution of the partnership firm and the said suit was dismissed. However, A.S.No.737 of 1993 preferred by the third defendant is pending before this Court.
8. The fourth defendant in his written statement has contended that after the demise of Sundararaju Asari, since his son Perumal was minor at that time, he was managing the property left by Sundararaju Asari. On attaining majority, the fourth defendant delivered possession of all the properties to Perumal. Thereafter Perumal was managing the properties by himself. However, sailing with the plaintiffs, the fourth defendant has contended that Perumal was managing the properties for himself and on behalf of his sisters, who are his co-sharers. To purchase the property and construct cinema theatre by the partnership firm, Perumal invested income derived from the suit properties.
9. The trial Court on considering the above pleadings, framed the following issues:-
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2.Whether the suit properties are already partitioned?
3.To what other relief the plaintiffs are entitled?''
10. On the side of the plaintiffs, the first plaintiff mounted the witness box, examined as P.W.1. Four documents were marked as Exs.A1 to A6. On the side of the defendants, first defendant mounted the witness box, examined as D.W.1. Six documents were marked as Exs.B1 to B6.
11. The trial Court held that the parties have already divided the properties under the partition deed, dated 18.06.1963 [Ex.B1]. Therefore, the plaintiffs 1 to 3 are not entitled for partition over the suit properties and also not entitled for any rendition of accounts.
12. Pending suit, the fourth plaintiff, who is the daughter of Meenakshi Ammal died and her legal heirs were brought on record as plaintiffs 5 and 6. Under Ex.B1, Meenakshi Ammal been allotted a share over first item of the first schedule property. Since Meenakshi Ammal died intestate, her share has to be 12/25 https://www.mhc.tn.gov.in/judis A.S.(MD)Nos.107 of 2009 and 16 of 2012 inherited by her daughter and son namely, the fourth plaintiff and Perumal [husband of the first defendant]. Taking note of the fact that the fourth plaintiff had relinquished her right in the property even during the life time of Meenakshi Ammal after receiving Rs.40,000/- under Ex.B2, the trial Court held that the fourth plaintiff cannot have any claim as legal heir of Sundararaju Asari. At the same time, the trial Court also found that what was relinquished by the fourth plaintiff was her right in the suit schedule properties through her father, but after the demise of her mother Meenakshi Ammal, as one of the legal heirs of Meenakshi Ammal, she is entitled for 1/2 share in the share of Meenakshi Ammal. The Will alleged to have been executed by Perumal in favour of his wife [the first defendant], which is marked as Ex.B.6 was held as not binding upon the fourth plaintiff and her legal heirs, who are arrayed as plaintiffs 5 and 6. The admission of the first defendant during the cross examination recognizing the right of the fourth plaintiff over the first and second item of the first schedule property was taken note by the trial Court and accordingly, the suit was partly allowed to the effect that Item Nos.1 and 2 of the first schedule property to be divided into two shares and one share should be allotted to the plaintiffs 5 and 6, who are the legal heirs of the fourth plaintiff.
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13. Being aggrieved by allowing the suit for partition directing her to allot 1/2 share in Item Nos.1 and 2 of the first schedule property, the first defendant Krishnaveni, wife of Perumal, has preferred A.S.(MD)No.107 of 2009. Whereas, the plaintiffs 1 to 3, who had lost their suit for partition in toto, have preferred A.S.(MD)No.16 of 2012.
14. The learned counsel appearing for the plaintiffs 1 to 3 / appellants in A.S.(MD)No.16 of 2012 submitted that the trial Court erred in holding that Item No.2 of the first schedule property was purchased by Meenakshi Ammal from Mohammed Yacoob on 22.08.1968. According to the learned counsel, the schedule of property mentioned in Ex.B5 does not tally with the schedule of property more fully described in Item No.2 of the first schedule property. Prior partition, Ex.B1 not been properly pleaded and proved by the first defendant. The trial Court failed to appreciate that Item Nos.2 and 3 in the first schedule property were only aggregation of the estate of the deceased Sundararaju Asari and those properties were purchased from the income of Sundararaju Asari. Only from the income derived from the joint family property, Perumal invested money in the II Schedule property, which is the partnership business. Therefore, the share of 14/25 https://www.mhc.tn.gov.in/judis A.S.(MD)Nos.107 of 2009 and 16 of 2012 Perumal in the partnership firm has to be equally shared by the other family members, who are the co-owners. The release deed Ex.B2 alleged to have been executed by the fourth plaintiff not been properly proved and therefore, the trial Court ought not to have been accepted the document.
15. The first defendant in her appeal in A.S.(MD)No.107 of 2009 has contended that the Court below ought not to have granted a partial decree for partition of 1/3 share in Item Nos.1 and 2 of the first schedule. The Court below has failed to consider that the deceased fourth plaintiff has executed a release deed in favour of the first defendant's husband Perumal and mother-in-law Meenakshiammal releasing her right over the family properties after getting cash of Rs.40,000/-. The release deed Ex.B2, dated 29.11.1981, disentitles the fourth plaintiff to claim any share in Item Nos.1 and 2 of the first schedule. De hors of proving the release deed Ex.B2, the trial Court has granted a decree for partition of 1/2 share in Item Nos.1 and 2 in the first schedule.
16. The learned counsel for the appellants in A.S.(MD)No.107 of 2009, who is respondents in A.S.(MD)No.16 of 2012, contended that the suit for 15/25 https://www.mhc.tn.gov.in/judis A.S.(MD)Nos.107 of 2009 and 16 of 2012 partition is badly hit by suppression of material fact. Though the trial Court has rightly disallowed the claim of the plaintiffs 1 to 3, who had got separated from joint family on the date when they took their shares and executed a partition deed Ex.B1, it had failed to take note of the release deed executed by the fourth plaintiff after receiving Rs.40,000/-.
17. The learned counsel for the first defendant, who is appellant in A.S. (MD)No.107 of 2009, contended that having accepted the release deed as genuine, the trial Court had erred in holding that after the demise of Meenakshi Ammal, her share will entirely devolve upon the fourth plaintiff, who died pending suit, leaving behind the plaintiffs 5 and 6 as her legal heirs. Even if Ex.B2 release deed is to be construed that Vallimayil Ammal [the fourth plaintiff] released her share in the property purchased by Meenakshi Ammal, soon after the demise of Meenakshi Ammal intestate, the 1/2 share of Meenakshi Ammal has to devolve upon her two legal heirs equally. In such circumstances, the fourth plaintiff will be entitled only for 1/4 share in Item Nos.1 and 2 of first schedule. In turn, her two legal heirs, namely, the plaintiffs 5 and 6 will be entitled for 1/8 share each in Item Nos.1 and 2 of the first schedule and not 1/2 share as decreed by the trial Court.
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18. We have heard the learned counsels appearing for the parties and perused the materials available on record.
19. The points for determination in these appeals are, (1) Whether the trial Court had properly appreciated the partition deed, marked as Ex.B1?
(2) Whether the trial Court correct in allotting 1/2 share jointly to the plaintiffs 5 and 6 as legal representatives of the fourth plaintiff in spite of Ex.B.2, the release deed?
20. Sundararaju Asari, the father of the plaintiffs 1 to 4 and Perumal [the husband of the first defendant] died on 24.05.1963. Meenakshi Ammal his widow survived and lived till 1997. Ex.B1 is the registered partition deed, dated 18.06.1963. This is between the three children born through the first wife of Sundararaju Asari, the second wife Meenakshi Ammal representing herself and her two minor children. Under this partition deed, the properties left behind by Sundararaju Asari been divided and shared. By virtue of this partition deed, the status of the joint family claimed by the plaintiffs has actually come to an end. 17/25 https://www.mhc.tn.gov.in/judis A.S.(MD)Nos.107 of 2009 and 16 of 2012 However, suppressing this partition deed, suit has been laid by the plaintiffs, claiming share in the property, which has already been subjected to partition and allotted to Meenakshi Ammal, who also represented her minor son Perumal and daughter Vallimayil Ammal (fourth plaintiff).
21. Two Branches of Sundararaju Asari had got separated soon after his death and the partition deed Ex.B1 is the proof for the said fact and thereafter, the other properties, which had been accrued by the Branch headed by Meenakshi Ammal, consisting of her son Perumal and daughter Vallimayil Ammal will not carry the character of Sundararaju Asari's joint family properties. There is no material to show that the plaintiffs 1 to 3 had enjoyed the joint family status with the other Branch of Sundararaju Asari after Ex.B1. The present suit for partition is filed in the year 2001, 38 years after the extinguishment of joint family status.
22. The only reason which could be attributed for filing this suit is the fact that the plaintiffs 2 and 3 having married to the defendants 2 and 4 along with the husband of the first defendant Perumal had joined hands to form a partnership firm in the year 1981, and had constructed a Theatre in the year 1984 [first 18/25 https://www.mhc.tn.gov.in/judis A.S.(MD)Nos.107 of 2009 and 16 of 2012 schedule property]. After sometime, disputes among the partners had arisen, leading to instituting a suit for dissolution of partnership firm by the third defendant. This has probably triggered the plaintiffs to join hands and file the partition suit suppressing all the material facts. Hence, the trial Court has rightly dismissed the partition plea raised by the plaintiffs 1 to 3. The dismissal of the partition suit in toto in respect of the claim made by the plaintiffs 1 to 3 is based on the earlier partition Ex.B1, which had been acted upon totally in consonance with the material evidence and therefore, this Court finds no reason to interfere with the judgment and decree, dismissing the suit for partition as far as the plaintiffs 1 to 3. Hence, the appeal in A.S.(MD)No.16 of 2012 preferred against the dismissal of suit is liable to be dismissed with costs.
23. Regarding the finding of the trial Court allotting 1/2 share to the legal heirs of the fourth plaintiff in Item Nos.1 and 2 of the first schedule, the same is required to be reconsidered for the reason that the fourth plaintiff is the daughter of Meenakshi Ammal. She and her brother Perumal, who is the husband of the first defendant are entitled for the properties left by Meenakshi Ammal, who died intestate. There can be no doubt in the said legal proposition. But, whether Item Nos.1 and 2 of the first schedule solely belong to Meenakshi Ammal is a 19/25 https://www.mhc.tn.gov.in/judis A.S.(MD)Nos.107 of 2009 and 16 of 2012 questionable fact and thereupon, if it belongs to Meenakshi Ammal solely, whether the release deed executed by Vallimayil Ammal on 29.11.1981 [Ex.B2] will take away the right of Vallimayil Ammal in respect of those properties.
24. From the title documents and the release deed, this Court finds that under Ex.B2 Vallimayil Ammal had released her rights in favour of her brother and mother Meenakshi Ammal on 29.11.1981, wherein she has relinquished her right in the family property in entirety without any reservation. She has declared that henceforth, the property will be enjoyed by Meenakshi Ammal and Perumal absolutely. Neither she nor her legal heirs have any right over the property. In and around the same period of time, Vallimayil Ammal has purchased properties under Ex.B3 and Ex.B4 probably using the money given by Meenakshi Ammal and Perumal at the time of executing the release deed. In the said circumstances, after the demise of Meenakshi Ammal, her son Perumal, who had been enjoying Item Nos.1 and 2 of the first schedule properties, had executed a Will, dated 14.12.1988, and got it registered, wherein he has stated that his mother Meenakshi Ammal orally has relinquished her share in the property and therefore, being the absolute owner of the entire property, bequeathed it to and in favour of his wife [the first defendant].
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25. The trial Court while appreciating this document, has held that Ex.B2 release deed executed by Vallimayil Ammal cannot be an absolute relinquishment of entire right in the property. On the death of Meenakshi Ammal intestate, her right in Item Nos.1 and 2 of the first schedule property gets revived to the extent of Class - I legal heir of Meenakshi Ammal. The point under consideration therefore gets narrowed down to the percentage of apportionment between the two children of Meenakshi Ammal in respect of her share.
26. The release deed executed by Vallimayil Ammal under Ex.B2 is restricted to her share as legal heir of Sundararaju Asari, on the date of executing the release deed. The right in the share of her mother, which blossomed on her mother's death intestate, open ups the division afresh. From the recital found in Ex.B6 i.e., the Will of Perumal executed in favour of his wife [first defendant], he had stated that his mother has orally relinquished her right in Item Nos.1 and 2 of the first schedule property in his favour. Thus, he had been absolute owner of the entire property. The oral relinquishment of immovable property found as a recital in Ex.B6 Will, not duly proved in the manner known to law. Hence, the same cannot be acted upon. The alleged oral relinquishment of right over immovable 21/25 https://www.mhc.tn.gov.in/judis A.S.(MD)Nos.107 of 2009 and 16 of 2012 properties not been spoken by Meenakshi Ammal, but by her son Perumal through his Will and such self-serving declaration is not supported by any corroborative evidence.
27. As far as the first schedule property is concerned, after the partition among the two branches of Sundararaju Asari, it has vested absolutely with the branch headed by Meenakshi Ammal and her two children. The fourth plaintiff Vallimayil Ammal, who is the daughter of Meenakshi Ammal, had relinquished her 1/3 share by receiving Rs.40,000/- from Meenakshi Ammal and Perumal and executing Ex.B2 release deed. From the date of executing Ex.B2 release deed till the date of death of Meenakshi Ammal, the subject property been jointly held by Meenakshi Ammal and Perumal. On the demise of Meenakshi Ammal, only her undivided 1/2 share in the property gets devolved on her daughter Vallimayil Ammal [the fourth plaintiff] and her son Perumal [the husband of the first defendant]. However, the trial Court has erred in holding that the fourth plaintiff will get the entire 1/2 share of her mother. Therefore, to that extent, the trial Court while apportioning the share of the fourth plaintiff, who died pending suit and being represented by the plaintiffs 5 and 6, has erred. Instead of allotting 1/4 22/25 https://www.mhc.tn.gov.in/judis A.S.(MD)Nos.107 of 2009 and 16 of 2012 share to the fourth plaintiff in Item Nos.1 and 2 of the first schedule, the trial Court has allotted 1/2 share ignoring the fact that on the death of the Meenakshi Ammal intestate, her 1/2 share will be devolved on her son and daughter equally and not on the daughter alone.
28. Hence, A.S.(MD)No.107 of 2009 preferred by the first defendant is partly allowed. The decree is modified to the effect that the plaintiffs 5 and 6, who are the legal heirs of the deceased fourth plaintiff, are jointly entitled for 1/4 share in Item Nos.1 and 2 of the first schedule properties. Accordingly, the judgment and decree of the trial Court is partly set aside, restricting the share of the plaintiffs 5 and 6 to 1/4 share jointly [instead of 1/2 share jointly] in respect of Item Nos.1 and 2 of the first schedule.
29. In the result,
(i) A.S.(MD)No.16 of 2012 is dismissed with costs.
(ii) A.S.(MD)No.107 of 2009 is partly allowed. There shall be no order as to costs.
Index : Yes [G.J., J.] [C.K., J.]
NCC : Yes 14.02.2024
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A.S.(MD)Nos.107 of 2009 and 16 of 2012
To
1.The Additional District Judge (Fast Track Court),
Dindigul.
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court.
Madurai.
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A.S.(MD)Nos.107 of 2009 and 16 of 2012
DR.G.JAYACHANDRAN, J.
and
C.KUMARAPPAN, J.
smn2
PRE-DELIVERY COMMON JUDGMENT MADE IN
A.S.(MD)Nos.107 of 2009 and 16 of 2012
14.02.2024
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