Madras High Court
Amutha vs M.Pappathi on 7 January, 2020
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
A.S.(MD)No.39 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.01.2020
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.(MD)No.39 of 2019
1.Amutha
2.Neela
3.Chandra ... Appellants / Defendants
Vs.
M.Pappathi ... Respondent / Plaintiff
PRAYER: Appeal filed under Section 96 read with Order 41 Rule 1
of the Civil Procedure Code, against the judgment and decree
dated 28.01.2016 passed in O.S.No.52 of 2013 on the file of the
court of the III Additional District Court, Tiruchirapalli.
For Appellants : Mr.S.Vinod Sathya Lazar
For Respondent : Mr.Sivabalan
JUDGMENT
As against the finding of the Trial Court, this appeal has been filed by the defendants 1 to 3 in OS.No.52 of 2013, against 1/10 http://www.judis.nic.in A.S.(MD)No.39 of 2019 the judgment and decree, dated 28.01.2016 passed by the learned III Additional District Judge, Tiruchirapalli.
2.The brief facts leading to filing of the appeal is as follows:
2.1. The plaintiff and the defendants are sisters born to one Arumugam. Apart from that, the plaintiff and the defendants have one brother namely, Muthusamy who died intestate and at the time of death, he was unmarried. The suit first schedule of property in Survey Nos.27/3 and 27/4 was acquired by father of the parties. The suit second schedule of property was purchased by deceased Muthusamy, brother of the plaintiff, he died 20 years back. The plaintiff and the defendants are the only legal heirs of the deceased brother Muthusamy. The plaintiff is having 1/4th share in the schedule of properties. Now, the third defendant created a forged document alleging that she is entitled to the suit second schedule property. The father of the plaintiff and defendants did not have any right over the property. Hence the suit.
2.2. The defendants filed a written statement. It is the contention of the defendants that only three cents has been 2/10 http://www.judis.nic.in A.S.(MD)No.39 of 2019 purchased by the father Arumugam Muthiriyar and the remaining properties by one Kuthammal vide registered sale deed No.338 of 1953. However, the plaintiff has wrongfully shown the aforesaid properties in suit item No.1, totalling 9 cents. It is also denied that 50 coconut trees available in the suit first schedule property. It is the contention of the defendants that the suit second schedule property was purchased by one Arumugam through registered sale deed, dated 05.10.1989. Subsequently, he sold the same to the third defendant through sale deed, dated 20.02.2012. Hence, the third defendant is the absolute owner of the suit second schedule property. The plaintiff is separately living from her husband and children, for the past 25 years. Hence prayed for dismissal.
3. On the basis of the rival pleadings, the Trial Court had framed the following issues for trial:-
1. Is the plaintiff entitled for a preliminary decree of partition of one fourth (1/4) share in the suit properties ?
2. Is the descriptive of properties correct ?
3. Is it true to state that the suit second item property was purchased in the name of third defendant on 20.02.2012 and she is the absolute owner of it ?
4. Any other relief ?
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4. On the side of the plaintiff, plaintiff examined as PW1 and Ex.A.1 to Ex.5 marked. On the side of the defendants, the first defendant examined himself as DW.1 and no document marked.
5. On consideration of the oral and documentary evidence, the learned III Additional District Judge decreed the suit in favour of the plaintiff. Challenging the said judgment and decree, the first, second and third defendants had filed this appeal.
6. The learned Counsel for the appellants would submit that the trial Court having found that the suit second schedule property has been transferred in favour of the defendants, the trial Court ought not to have found that the second defendant is not the absolute owner of the suit second schedule property. Such a finding is against law
7. It is the contention of the learned Counsel for the respondent / plaintiff that admittedly, sister is a Class-II legal heir of the deceased unmarried brother. On the death of brother, his property will devolve upon the plaintiff as class-II legal heirs. 4/10 http://www.judis.nic.in A.S.(MD)No.39 of 2019 Therefore, the father dealing with the property is not valid under law. The Trial Court has appreciated this fact. The sale deed is fraudulently created. Therefore, the said sale deed is not binding on the plaintiff. Hence, the judgment of the trial Court does not require interference.
8. In the light of the above submission, the following points arose for consideration :
1. Whether the plaintiff is entitled to seek for partition in respect of the suit second schedule of property which was admittedly, sold infavour of the third defendant by father as a class-II legal heir of his only son Muthusamy ?
2. What reliefs the parties are entitled to ?
9. I have perused the entire records.
10. The plaintiff and the defendants are sisters born to one Arumugam. It is the case of the plaintiff that the suit first schedule of property absolutely belong to her father 5/10 http://www.judis.nic.in A.S.(MD)No.39 of 2019 Arumugam,whereas, the defendants taken a stand that the suit first schedule of property was purchased not only by the mother. The evidence of the P.W.1 also indicated that the suit first schedule of property was purchased by her father and mother. Both father and mother are not alive. This facts clearly establishes that the parties are entitled to share in the suit first schedule of property.
11. As far as the suit second schedule of property is concerned, it is the case of the plaintiff that the suit second schedule of property has been purchased by only brother Muthusamy. Though the defendants contended that the suit second schedule property was purchased by father, Ex.A.4 clearly shown the fact that the property was purchased by Muthusamy, who died as unmarried, without any legal issues. This fact clearly established on record. The suit second schedule of property being the separate property of Muthusamy, when he died as a bachelor, his property would devolve upon his Class-II legal heirs. Admittedly mother was not alive. On the date of death of Muthusamy, whether his mother was alive or not was not established. But the fact remains that at the time of death of Muthusamy, his father was alive. Admittedly, the father is the Class-II legal heir who is the first entry in Class-II. Though the 6/10 http://www.judis.nic.in A.S.(MD)No.39 of 2019 sisters are class-II legal heirs, they come under the subsequent entries namely, next to father.
12. Such view of the fact that those in the first entry in Class II shall be preferred to those in the second entry as per Section 9 of the Hindu Succession Act. Accordingly the father being the class II legal heir who is in the first entry in class II legal heirs, has become entitled to the property of his son who died unmarried. The suit second schedule property belong to his son, who died as a bachelor. Admittedly, the father of Muthusamy has dealt with the property and sold the property in favour of the third defendant another daughter. Such being the case, the plaintiff has no right to claim right over the suit second schedule property. Accordingly, the points are answered in favour of the appellants/defendants and this appeal is liable to be partly allowed. In respect of suit second schedule of property, the suit is liable to be dismissed. The judgment and decree of the Trial Court in O.S.No.52 of 2013 is alone set aside in respect of suit second schedule of property.
13. In fine, this appeal suit is partly allowed. No costs. In respect of suit second schedule of property the suit in 7/10 http://www.judis.nic.in A.S.(MD)No.39 of 2019 O.S.No.52 of 2013 is dismissed. As far as the preliminary decree in respect of suit first schedule of property, the judgment and decree in O.S.No.52 of 2013 are confirmed.
07.01.2020
Index : Yes/No
Internet : Yes/No
RM
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A.S.(MD)No.39 of 2019
To
1. The III Additional District Judge,
Tiruchirappalli.
2. The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S.(MD)No.39 of 2019
N.SATHISH KUMAR,J.
RM
A.S(MD)No.39 of 2019
07.01.2020
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