Madras High Court
D. Karunakaran vs K. Padmanathan on 3 July, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
A.S.No.806 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.07.2025
CORAM:
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Appeal Suit No.806 of 2019
and
C.M.P. No.24894 of 2019
D. Karunakaran ... Appellant
Versus
1. K. Padmanathan
C. Loganathan (Deceased)
2. Kamala
3. Anandavalli
4. Muthu Ramanan @ Varadarajan ... Respondents
Appeal Suit is filed under Section 96 r/w. Order XLI, Rule 1 of Civil
Procedure Code against the judgment and decree dated 31.01.2019 made in
O.S.No.10824 of 2010 on the file of the learned VI Additional Judge, City
Civil Court, Chennai.
For Appellant : Mr. S. Parthasarathy
Senior Counsel
for Mr.M.Muthappan
For Respondent 1 : Mr. J.R.K.Bhavanantham
JUDGMENT
1/58
https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 This Appeal Suit had been filed against the judgment and decree dated 31.01.2019 made in O.S.No.10824 of 2010 on the file of the learned VI Additional Judge, City Civil Court, Chennai.
2. The brief facts which are necessary for the disposal of this Appeal Suit are as follows:-
2.1. The 1st Defendant is the elder brother of the Plaintiff. One Mr.N.Kanniah Reddy was the father of the Plaintiff and the 1st Defendant. The said Mr.N.Kanniah Reddy was the owner of the premises bearing new No.17, Old No.9, Sampangi Street (formerly known as 4-B, Ramanujulu Reddy Street) West Mambalam, Chennai 600 033, more fully described in the ‘A’ schedule by virtue of sale deed dated 17.2.1968 executed by one T.K.Govindaraj Reddiar in his favour vide registered document No.495/68 within S.R.O. Thyagaraya Nagar and District Registrar, Madras South. The Plaintiff’s father purchased a vacant site in the above mentioned property and put up brick walls laid with asbestos roof and obtained water, sewerage and drainage connection to the above said property and he has been in possession and enjoyment of the same. With sound disposing state of mind and out of free will and volition, the deceased Mr.N.Kanniah Reddy executed a registered settlement deed dated 20.11.1971 in document No.1707/1971 within SRO, Thiyagaraya Nagar, 2/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 settling the life estate in the plaint ‘A’ schedule property to his wife Dhanabackiyammal and divested the vested remainder to his sons namely the Plaintiff and the first Defendant with all the powers of alienation and also delivered possession of the plaint ‘A’ schedule property to his wife Dhanabackiyammal. The Plaintiff’s mother seized the said property and she had been dealing with the property. The records in the Corporation and Chennai Metro Water Sewerage and Drainage connection were mutated in the name of the deceased Dhanabackiyammal for the payment of property tax and water tax. The Plaintiff’s father N.Kanniah Reddy died on 5.3.1982 and his mother Dhanabackiyammal died on 3.5.1994. After the death of their parents, the Plaintiff and the first Defendant were in joint possession of the plaint ‘A’ schedule property. The Plaintiff’s father met with an accident and sustained multiple fractures on right thigh and was hospitalized in Royapettah Hospital for nearly one year and the Plaintiff bestowed his personal care and met out the entire medical expenses of his father apart from his performing obsequies of his father and the sixteenth day ceremony at his own cost. The Plaintiff’s mother was hospitalized in Vijaya Hospital for three months. The first Defendant did not attend the funeral of his parents even and such is the attitude of the first Defendant.
2.2. In the year 1996, the Plaintiff obtained planning permit, approval 3/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 of the building plan from the Corporation of Chennai and put up superstructure on the remaining vacant site in the plaint ‘A’ schedule property out of his own funds and earnings and obtained electricity service connection from the T.N.E.B. In the asbestos roof portion, the Plaintiff’s sister Tmt.Mohana (widower) came to be in occupation and the first Defendant forcibly vacated her and took possession in the year 2006 and the first Defendant also inducted a tenant into the said portion and the 1st Defendant had been appropriating the rents without the consent of the Plaintiff and sharing the same. On 1.3.2007 the first Defendant raised a dividing wall of 3” thickness, North to South, leaving a passage of width 4’ on the eastern side, which is tapering upto 4’ 3” distance, illegally and unlawfully, causing nuisance, annoyance, inconvenience and embarrassment to the Plaintiff. The first Defendant being elder to the Plaintiff took law into his own hands and committed all sorts of illegal and unwanted activities. On 13.9.2007 the Plaintiff obtained shifting of water connection through the said 4’ passage. The sewerage connection line is retained in the same position in the plaint ‘B’ schedule property and leading to rear portion of the plaint ‘A’ schedule property as detailed in the plaint sketch. There is only one drainage and sewerage connection to the entire plaint ‘A’ schedule property and no partition was erected over the plaint ‘A’ schedule property by metes and bounds between the Plaintiff and the first Defendant. For convenience-sake, the Plaintiff has been in occupation of the rear portion of the 4/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 plaint ‘A’ schedule property. With the consent of the first Defendant, the Plaintiff has put up the construction as aforesaid in the rear portion. The ‘A’ schedule property was in enjoyment as undivided is true and evident from the notice dated 9.3.2006 issued by the first Defendant calling for equal partition of plaint ‘A’ schedule property. The Plaintiff replied the same on 21.6.2006 calling upon the first Defendant to leave at least 5’ passage for rear portion which is in enjoyment of the Plaintiff and persuaded the 1st Defendant to amicably settle the partition issue, which was evaded by the first Defendant with ulterior motive.
2.3. On 9.5.2009 when the Plaintiff was jogging in the early morning hours, one of the brokers who dealt with the ‘B’ schedule property came and informed him that his brother purported to have sold the plaint ‘B’ schedule property to the second Defendant and on 11.5.2009 the Plaintiff obtained certified copy of sale deed and shocked to know the recitals of the same which is not supported with consideration. The second Defendant is not the bonafide purchaser for value without notice of the Plaintiff’s right, interest, title and joint possession in the plaint ‘B’ schedule property. The entire original documents are with the Plaintiff. The second Defendant is set up by the first Defendant to entangle the property into litigation and gain advantage to defeat the preferential right of the Plaintiff. Hence the said impugned sale deed dated 5/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 20.4.2009 purported to have been executed by the first Defendant in favour of the second Defendant is to be declared as null and void, not valid and binding on the Plaintiff. The Defendants 1 and 2 are contemplating to demolish the existing 3” thickness wall running North to South in the plaint ‘A’ schedule property and reduce the passage and pathway to a width of 3’ running North to south and planning to construct a wall running North to south from the street end with a mala fide intention to restrict and reduce the passage leading to the rear portion, which will affect the Plaintiff’s free access to the road. The balance of convenience and prima facie case are in favour of the Plaintiff. The Plaintiff has made improvement in the plaint ‘A’ schedule property by putting up construction on the remaining vacant site in the plaint ‘A’ schedule property worth about Rs.24,00,000/-. Under section 22 of the Hindu Succession Act and Partition Act the Plaintiff is entitled to right of pre-emption to purchase the undivided other half share belongs to the first Defendant. The total frontage of the plaint ‘A’ schedule property is only 19’. The rear portion should have access to the street Sampangi Street. At least 5’ passage is required for emergency exit for ingress and egress. The Plaintiff is entitled to half share in the plaint ‘A’ schedule property and the Plaintiff is paying the property tax and water and sewerage tax to the competent authority since 1987 onwards though the Plaintiff and the first Defendant are in joint possession. Hence the suit. 6/58
https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019
3. The brief averments in the written statement filed by the 1st Defendant and adopted by the 2nd Defendant are as follows :-
3.1. The suit claim is structured for a half share of ‘A’ schedule property when the Plaintiff and the 1st Defendant had already divided the said property by metes and bounds by virtue of a Koor-chit dated 10.07.1996 and the said instrument is binding on the parties. The suit is further structured for a preferential right to purchase ½ share when the Plaintiff claiming right over the superstructure in the rear side which was put up jointly after obtaining sanctioned plan from the Corporation of Chennai in Building Approval No.D9/3533/95 and Plan Approval No.49/1845/1996 without valid recitals.
The failure on the part of the Plaintiff to include the property in Mannur Village, Sriperumpudur Taluk, Kanchipuram District and to add the sisters of the Plaintiff and the 1st Defendant who are necessary for the said claim and the suit is thus hit by Order II Rule 2 of C.P.C. The heirship and genealogy of the title for the property set out in schedule ‘A’ is part and parcel of fact and records. The death of the parents of the Plaintiff and the 1st Defendant are admitted, but claiming preferential right over the expenses incurred during hospitalization is denied.
3.2. It is only the 1st Defendant who sacrificed for the betterment of whole family members is unforgettable. The sister of the Plaintiff and the 1st 7/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 Defendant Mrs. Pushpa gave her daughter in marriage to the Plaintiff joined together and were teasing the 1st Defendant in all his activities. The Plaintiff after extracting the 1st Defendant’s hard earned labor exhibited in the Koor- chit dated 10.7.1996 to claim exclusive possession over the property which is in the rear side of the schedule ‘A’ property. It is the Plaintiff who shifted the electricity connection to claim exclusive right over the same. Mrs. Mohana after the construction of the rear side property wanted a portion in the constructed place which was negatived and hence she vacated from the property. The Koor-chit dated 10.7.1996 will play a prominent role in dividing the right between the Plaintiff and the 1st Defendant and the Plaintiff is having the original instrument which was written in his own hand writing signed by both the Plaintiff will give quietus to the illegal claim made by the Plaintiff. The Plaintiff who claims exclusive right over the superstructure in the rear side, also attempted to claim rent from the present tenants Shaji, Shankar in the first floor, Thilaga and Kumar in the second floor in all to the tune of Rs.20,000/- per month and also wanted to disturb the 1st Defendant’s right over the front portion. For the notice dated 9.5.2006 seeking the Plaintiff to have amicable partition of ‘A’ schedule, the Plaintiff belatedly replied on 21.6.2006 and finally it was resolved between the 1st Defendant and the Plaintiff that this Defendant to allow the Plaintiff to take the constructed rear side portion and to allow this Defendant to occupy the remaining frontage as 8/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 the rear side portion also have access from T.K.Govinda Reddiar’s 3rd lane. Though this Defendant allowed for that, the Plaintiff started demanding 5 ft passage illegally, which was finally concluded between this Defendant and the Plaintiff to allow this Defendant to treat the existing 3 feet passage as common and to enjoy the rest of the portion with equal proportion. This demand would reflect in the reply notice dated 21.6.2006. The sale deed is perfectly valid in the eye of law in view of the Koor-chit dated 10.7.1996. This Defendant has received the sale consideration for the execution of the sale deed and the sale is fulfilled with the necessary ingredients as contemplated in the Transfer of Property Act and the sale deed is valid in law. The possession of the original documents does not evolve any additional right or title to the applicant. Absolutely for this Defendant’s necessity and the illegality committed by the Plaintiff, this Defendant was forced to sell the front portion to an extent of 660 sq.ft together with the common enjoyment of the passage by virtue of the sale deed dated 20.4.2009. The Plaintiff is entitled only to an extent of 3 feet width common pathway. Since the Plaintiff and the 1st Defendant had already entered into a Koor-chit dated 10.07.1996 appended by a sketch expressing their intention in sharing the property, the prayer to seek for a preliminary and final decree is not valid in the eye of law. The Plaintiff’s claim for a preferential right to purchase other half without mentioning of correct particulars is not valid in the eye of law and as per Section 22 of the Hindu 9/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 Succession Act preferential right can be claimed only when an attempt is made, but in this case the 1st Defendant has sold his share to the 2nd Defendant and the question of preferential right will not arise. The Plaintiff failed and neglected to allege any valid reason to seek cancellation of the registered sale deed dated 20.4.1999, which is valid in law. Since the Koor-chit dated 10.07.1996 is binding between the parties, not only the claim of permanent injunction by the Plaintiff but the whole suit claim is liable to be dismissed. After various disputes raised by the Plaintiff, the Plaintiff and the 1st Defendant decided to reduce the terms arrived between them by Koor-chit and accordingly a nonjudicial stamp paper valuing Rs.10/- was purchased in the name of the Plaintiff and the 1st Defendant dated 3.7.1996 and the Plaintiff in his own handwriting reduced the terms by writing and the same was signed by both the parties on 10.7.1996 by 8.10 am. The original instrument was retained by the Plaintiff and the photostat copy was handed over to the 1st Defendant. In the said instrument the rear side portion was allotted to the Plaintiff with a passage of 3 feet on th eastern side measuring 3 ft x 40 ft was allowed which was later treated as common between both parties. The 1st Defendant is still owing his balance property in ‘A’ schedule. Under patta schedule ‘A’ is excess by 20 feet. The Plaintiff is also now attempting to claim the staircase leading to the first and second floor for the exclusive use of the rear side portion. The well which situates in the rear side is also meant for both parties. Therefore, the 1st 10/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 Defendant is filing this written statement with counter claim praying to (i) to dismiss the suit filed by the Plaintiff; (ii) that this Hon’ble Court may be pleased to declare the Koor-chit dated 10.07.1996 entered by the Plaintiff and the 1st Defendant is binding on the Plaintiff and the 1st Defendant; (iii) for a permanent injunction restraining the Plaintiff and his men and agents from in any manner interfering with the peaceful possession and enjoyment of the property which is described in the schedule; and (iv) to pass such further or other orders as this Court may deem fit proper in the circumstances of the case.
4. The brief averments in the written statement filed by the Defendants 3 to 5 are as follows :-
4.1. The suit claim is structured for a half share of ‘A’ schedule property when the Plaintiff and the 1st Defendant had already divided the said property by metes and bounds by virtue of a Koor-chit dated 10.07.1996 and the said instrument is binding on the parties. The suit is further structured for a preferential right to purchase ½ share when the Plaintiff claiming right over the superstructure in the rear side which was put up jointly after obtaining sanctioned plan from the Corporation of Chennai in Building Approval No.D9/3533/95 and Plan Approval No.49/1845/1996 without valid recitals.
The failure on the part of the Plaintiff to include the property in Mannur Village, Sriperumpudur Taluk, Kanchipuram District and to add the sisters of 11/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 the Plaintiff and the 1st Defendant who are necessary for the said claim and the suit is thus hit by Order II, Rule 2 of C.P.C. The heirship and genealogy of the title for the property set out in schedule ‘A’ is part and parcel of fact and records. The death of the parents of the Plaintiff and the 1st Defendant are admitted, but claiming preferential right over the expenses incurred during hospitalization is denied. It is only the 1st Defendant who sacrificed for the betterment of whole family members is unforgettable. The sister of the Plaintiff and the 1st Defendant Mrs. Pushpa gave her daughter in marriage to the Plaintiff joined together and were teasing the 1st Defendant in all his activities. The Plaintiff after extracting the 1st Defendant’s hard earned labor exhibited the Koor-chit dated 10.7.1996 to claim exclusive possession over the property which is in the rear side of the schedule ‘A’ property. It is the Plaintiff who shifted the electricity connection to claim exclusive right over the same. Mrs. Mohana after the construction of the rear side property wanted a portion in the constructed place which was negatived and hence she vacated from the property. The Koor-chit dated 10.7.1996 will play a prominent role in dividing the right between the Plaintiff and the 1st Defendant and the Plaintiff is having the original instrument which was written in his own hand writing signed by both the Plaintiff will give quietus to the illegal claim made by the Plaintiff. The Plaintiff who claims exclusive right over the superstructure in the rear side, also attempt to claim rent from the present tenants Shaji, Shankar in the 12/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 first floor, Thilaga and Kumar in the second floor in all to a tune of Rs.20,000/- per month and also wanted to disturb these Defendants’ right over the front portion. For the notice dated 9.5.2006 seeking the Plaintiff to have amicable partition of ‘A’ schedule, the Plaintiff belatedly replied on 21.6.2006 and finally it was resolved between the 1st Defendant and the Plaintiff that this Defendant to allow the Plaintiff to take the constructed rear side portion and to allow this Defendant to occupy the remaining frontage as the rear side portion also have access from T.K.Govinda Reddiar’s 3rd lane. Though this Defendant allowed for that, the Plaintiff started demanding 5 ft passage illegally, which was finally concluded between this Defendant and the Plaintiff to allow this Defendant to treat the existing 3 feet passage as common and to enjoy the rest of the portion with equal proportion. This demand would reflect in the reply notice dated 21.6.2006. The sale deed is perfectly valid in the eye of law in view of the Koor-chit dated 10.7.1996. The 1st Defendant has received the sale consideration for the execution of the sale deed and the sale is fulfilled with the necessary ingredients as contemplated in the Transfer of Property Act and the sale deed is valid in law. The possession of the original documents does not evolve any additional right or title to the applicant. Absolutely for the Defendants necessity and the illegality committed by the Plaintiff, the 1st Defendant was forced to sell the front portion to an extent of 660 sq.ft. together with the common enjoyment of the passage by virtue of the sale deed dated 13/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 20.4.2009. The Plaintiff is entitled only to an extent of 3 feet width common pathway. Since the Plaintiff and the 1st Defendant had already entered into a Koor-chit dated 10.07.1996 appended by a sketch expressing their intention in sharing the property, the prayer to seek for a preliminary and final decree is not valid in the eye of law. The Plaintiff’s claim for a preferential right to purchase other half without mentioning of correct particulars is not valid in the eye of law and as per Section 22 of the Hindu Succession Act preferential right can be claimed only when an attempt is made, but in this case the 1st Defendant has sold his share to the 2nd Defendant and the question of preferential right will not arise. The Plaintiff failed and neglected to allege any valid reason to seek cancellation of the registered sale deed dated 20.4.1999, which is valid in law. Since the Koorchit dated 10.07.1996 is binding between the parties, not only the claim of permanent injunction by the Plaintiff but the whole suit claim is liable to be dismissed. After various disputes raised by the Plaintiff, the Plaintiff and the 1st Defendant decided to reduce the terms arrived between them by Koor-chit and accordingly a non-judicial stamp paper valuing Rs.10/- was purchased in the name of the Plaintiff and the 1st Defendant dated 3.7.1996 and the Plaintiff in his own handwriting reduced the terms by writing and the same was signed by both the parties on 10.7.1996 by 8.10 am. The original instrument was retained by the Plaintiff and the photostat copy was handed over to the 1st Defendant. In the said instrument the rear side portion 14/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 was allotted to the Plaintiff with a passage of 3 feet on th eastern side measuring 3 ft x 40 ft was allowed which was later treated as common between both parties. The 1st Defendant is still owing his balance property in ‘A’ schedule. Under patta schedule ‘A’ is excess by 20 feet. The Plaintiff is also now attempting to claim the staircase leading to the first and second floor for the exclusive use of the rear side portion. The well which situates in the rear side is also meant for both parties. The Defendants have every right to use the same. The suit property is not an ancestral property and it is already bequeathed by virtue of a settlement deed dated 20.12.1971 executed by late Kanniah Reddy, grandfather of the 1st Defendant. Hence the suit has to be dismissed.
5. Based on the plaint, written statement and the additional written statement, the learned VI Additional Judge, City Civil Court, had framed the following issues:
(1) whether the Plaintiff is entitled for partition as prayed for?
(2) whether the Plaintiff is entitled for declaration for preferential right to purchase the other half share as prayed for?
(3) whether the Plaintiff is entitled for declaration in respect of the sale deed dated 20.04.2009 as null and void as prayed for?
(4) whether the Plaintiff is entitled for permanent injunction as prayed for?
(5) whether the first Defendant is entitled for declaration as prayed for?
(6) whether the first Defendant is entitled for permanent 15/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 injunction as prayed for?
(7) To what relief?
6. During trial, the Plaintiff examined himself as P.W-1. The affidavit of the Plaintiff was filed as examination in chief of P.W-1. The Plaintiff had marked 16 documents as Ex.A- 1 to Ex.A-16. Ex.A-1 is the photostat copy of the settlement deed along with the original settlement deed in favour of Dhanabackiyammal executed by father of the Plaintiff and first Defendant dated 20.12.1971. Ex.A-2 is the original patta in the name of Dhanabackiyammal. Ex.A-3 is the photostat copy of the death certificate along with the original death certificate of Dhanabackiyammal dated 06.11.1998. Ex.A-4 is the copy of the lawyer notice with returned cover dated 09.03.2006. Ex.A- 5 is the reply notice dated 21.06.2006 along with acknowledgment card. Ex.A-6 is the original water tax receipt in the name of Dhanabackiyammal dated 12.09.2007. Ex.A-7 is the certified copy of the sale deed in favour of the second Defendant by the first Defendant dated 20.04.2009. Ex.A-8 is the original power of attorney deed dated 30.06.1995. Ex.A-9 is the original metro water notice dated 14.05.2014. Ex.A-10 is the original judicial stamp papers dated 09.07.1996. Ex.A-11 is the original letter of the first Defendant dated 30.07.1994. Ex.A-12 is the original letter sent by Mohana's Counsel. Ex.A-13 is the original Muchilika signed by the Plaintiff and first Defendant dated 01.10.2005. Ex.A-14 is the original corporation planning permit dated 16/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 08.04.1996. Ex.A-15 is the original revised corporation planning permit dated 20.11.1996. Ex.A-16 is the copy of the approved plan.
7. The original koor chit dated 10.07.1996 executed between the Plaintiff and Defendant was marked as Ex.B-1 on the side of the Defendants. Ex.B-2 is the original property tax receipt dated 06.07.2009. Ex.B-3 is the photographs with CD. The son of the first Defendant Muthuraman @ Varatharajan was examined as D.W-2. (The first Defendant was examined as D.W-1).
8. On appreciation of evidence, the learned VI Additional District Judge had by judgment dated 31.01.2019 in O.S.No.10824 of 2010, decreed the suit granting preliminary decree of partition and answered all the issues 1 to 7 in favour of the Plaintiff and against the Defendants 1 to 5.
9. Aggrieved, the purchaser of the property, the second Defendant had filed this Appeal Suit.
10. The second Defendant in C.S.No. 439 of 2009 on the file of the original side of the High Court is the Appellant herein. He is the purchaser of the property from the first Defendant. The Plaintiff in C.S.No. 439 of 2009 on 17/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 the file of the original side of the High Court had filed a suit seeking the relief of partition to declare the Plaintiff is entitled for preferential right to purchase the half share of the property in Plaint “A” Schedule from the first Defendant; to declare the sale deed dated 20.04.2009 purported to have been executed by the first Defendant in favour of the second Defendant in respect of the Plaint “B” Schedule property bearing Old No.9, New No.17, Sambangi Reddy Street, West Mambalam, Chennai -600 033 as null and void, sham and nominal, not valid and binding on the Plaintiff and to grant permanent injunction restraining the Defendant, agent, servant, any person claiming through them from in any manner interfering with or reducing or restricting the width of the pathway measuring 4 feet x 4 feet 6 inches running North to South from Sambangi Reddy Street and sewerage and drainage connection leading from Plain “B” Schedule property to the rear portion in occupation of the Plaintiff in the premises in Old No.9, New No.19, Sambangi Reddy Street, West Mambalam, Chennai – 6000 033.
11. Originally, the suit was filed by the Plaintiff before the original side of the High Court and numbered as C.S.No.439 of 2009. Subsequent to the raising of the pecuniary jurisdiction of the City Civil Court, Chennai, the suit was transferred to the file of the City Civil Court and renumbered as O.S.No.10824 of 2010.
18/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019
12. When the suit was pending on the original side as C.S.No.439 of 2009, the first Defendant filed written statement in C.S.No.439 of 2009, whereby he had claimed that the suit property was already settled by the father of the Plaintiff and the first Defendant, Kanniah Reddy in favour of the mother of the Plaintiff and the first Defendant, Dhanabackiyammal, whereby life estate was settled in favour of Dhanabackiyammal and after her lifetime, the property to be devolved on the sons of Kanniah Reddy and Dhanabackiyammal, the Plaintiff and Defendants herein. Accordingly, Kanniah Reddy died on 05.03.1982 and the mother of the Plaintiff and Defendant Dhanabackiyammal died on 03.05.1994. After the death of the parents, the Plaintiff and the first Defendant as the successors of the property had been in enjoyment of the property and the property was already partitioned between the Plaintiff and Defendant by executing a koor chit dated 10.07.1996 between them. It was written by the Plaintiff in his own handwriting, signed by the Plaintiff and first Defendant. Based on the said koor chit, the first Defendant had executed a sale deed in favour of the second Defendant. The Plaintiff was enjoying the back portion of the property and claiming 5 feet passage illegally. The first Defendant allowed 3 feet passage as common for the enjoyment of the rest of the portion with equal proportion. The first Defendant is entitled to front portion. The possession of the original documents with the Plaintiff does not 19/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 evolve any additional right or title to the Plaintiff. Due to the illegality committed by the Plaintiff, the first Defendant was forced to sell the front portion measuring an extent of 660 square feet together with common enjoyment of the passage by sale deed dated 20.04.2009. All the necessary conditions for sale had been fulfilled. The sale is absolutely valid. Section 22 of the Hindu Suction Act and Section 3 of the Partition Act will not be attracted since the Plaintiff had already divided his share and wanted to enjoy exclusively and the same was also sold. The Plaintiff is entitled only to common pathway of 3 feet. The suit claim is liable to be dismissed. Therefore, the Defendant seeks dismissal of the suit by the Plaintiff and also seeks to declare the koor chit dated 10.07.1996 by the Plaintiff and the first Defendant as binding on the Plaintiff and first Defendant and for a permanent injunction restraining the Plaintiff and his men and agents from any manner interfering with the peaceful possession and enjoyment of the property which is more fully described in the schedule as a “B” property.
13. Pending trial, the first Defendant died. Therefore, the legal heirs of the first Defendant viz., wife, daughter and son were impleaded as Defendants 3 to 5. The second Defendant did not file any separate written statement. The impleaded party, the legal heirs of the first Defendant filed additional written statement seeking dismissal of the suit.
20/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019
14. Thiru. S. Parthasarathy, learned Senior Counsel appeared for the Appellant Thiru.M.Muthappan for the Appellant. The learned Senior Counsel appearing for the Appellant submitted that the 'A' schedule mentioned property was originally owned by the father of the Plaintiff and Defendant-1 Kanaiah Reddy. The parents of the Defendant-1 and Plaintiff had four children. The Defendant-1 is the eldest son. The Plaintiff is the 3rd son. They have 2 other sisters Pushpavalli and Mohana. The Plaintiff had married the daughter of one of his sisters Pushpaavalli. The father of the Plaintiff and the Defendant-1 as owner of the property had executed a settlement deed dated 20.12.1971 marked as Ex.A-1 during trial. By which, he had settled life interest to his wife Dhanabakyammal, the mother of the Plaintiff and the Deffendnat-1. The said settlement deed was acted upon. Patta changed in favour of the Plaintiff and Defendant-1 along with Dhanabakyammal which is marked as Ex.A-2 during trial. The mother of the Plaintiff and Defendant-1 Dhanabakyammal died on 03.05.1994. Upon her death, the Plaintiff and the Defendant-1 became absolute owners of the schedule 'A' mentioned property. The entire extent of the property is 1,600 square feet. It belongs to both the brothers as per the settlement deed executed by the father of the Plaintiff and first Defendant before the trial Court. The Plaintiff and Defendant-1 had applied for planning permission for raising the building in 'A' schedule property which was marked 21/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 as Ex.A-14 and Ex.A-15. The Plaintiff and Defendant-1 had entered a Koorchit on 10.07.1996 by dividing their properties whereby as per the plan submitted before Chennai Corporation, rear portion will be occupied and constructed by the Plaintiff and the front portion of Schedule 'A' mentioned property shall be occupied and constructed by Defendant-1. The koorchit was acted upon and it is admitted by the Plaintiff that the Plaintiff is occupying the schedule 'A' of the mentioned property.
15. The learned Senior Counsel for the Appellant invited the attention of this Court to the cross examination of P.W-1 dated 23.07.2015. The Defendant-1 had constructed the wall from North to South of the schedule 'A' mentioned property and thereby earmarked schedule 'B' mentioned property. The Plaintiff did not object to construction of wall by Defendant-1. The Plaintiff in his cross examination admitted that he has filed the present suit only claiming 5 feet passage to enter the rear portion of the property. The Defendant-1 died pending cross examination. Therefore, the legal heirs of the deceased Defendant-1 were brought on record as Defendants 3 to 5.
16. It is the submission of the Senior Counsel that the learned VI Additional Judge, City Civil Court in his judgment had erroneously decreed the suit filed by the Plaintiff holding that the Plaintiff is entitled for preferential 22/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 right in the plaint 'A' scheduled mentioned property by relying upon Section 44 of the Transfer of Property Act, 1882. The preferential rights to acquire the property in certain situation was dealt in Section 22 of the Hindu Succession Act, 1956.
17. The Section 22 of the Hindu Succession Act will apply only if two or more heirs from Class-I of the schedule inherit an interest in an intestate business or revoked property. It is an admitted fact the schedule 'A' mentioned property was acquired by the Plaintiff and the Defendant-1 through Ex.A-1 settlement deed executed by the father of the Plaintiff and the Defendant-1. It is not the case of the Plaintiff that the property was acquired through succession upon intestate of the father. Therefore, claiming preferential rights gets vitiated in the light of provision to Section 22 of the Hindu Succession Act. The Plaintiff does not have the right of preferential share in the property.
18. The learned Senior Counsel for the Appellant submitted that the Appellant is the second Defendant in the suit. He had purchased the property measuring 660 square feet of property out of 1600 square feet.
19. The learned Senior Counsel invited the attention of this Court to the contents of paragraph 39 of the judgment which reads as follow: 23/58
https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 “The next relief sought for by the Plaintiff is to declare that the Plaintiff is entitled for preferential right to the other share, half share of the first Defendant in the Plaint “A” schedule property.”
20. He further submitted that Ex.B-1 is the koor chit. The Plaintiff had constructed on the rear side of the suit property. The Plaintiff rented out the portion, front portion is vacant, 3 feet passage is left for common use. The koor chit create right. Both sides acted as per koor chit. It is based on oral partition between the brothers. A co-owner is entitled to sell the property. The learned Senior Counsel also invited the attention of this Court to Section 44 of the Transfer of Property Act, 1882 which is extracted as under:
“44. Transfer by one co-owner.— Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.”
21. The learned Senior Counsel invited the attention of this Court to Ex. B-3 photograph. Originally, the father of the Plaintiff is the purchaser of the property. It is his self-acquired property. He had executed settlement deed dated 20.12.1971 by which life interest was given to the mother of the Plaintiff 24/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 and first Defendant and after her lifetime, it was settled in favour of the brothers, the sons of Kanniah Reddy and Dhanabackiyammal. There is no dispute regarding Ex.A-1 settlement deed. There is no dispute regarding the date of death of the parents of the Plaintiff and the first Defendant. The koor chit is acted upon by the Plaintiff and Defendant. It is proved by the Plaintiff having constructed in his half share on the rear portion of the property settled by the father of the Plaintiff and first Defendant. Therefore, what is left out as vacant site in front portion is sold by the Defendant-1 in favour of Defendant-2 as per sale deed dated 20.04.2009 under Ex.A-7 marked through the evidence of the Plaintiff. No preferential right arise here. The learned Senior Counsel invited the attention of this Court to section 22 of the Hindu Succession Act, 1956 which is extracted as under:
“22. Preferential right to acquire property in certain cases.— (1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.
(3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred. 25/58
https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 Explanation.—In this section, “court” means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf.”
22. Preferential right come into effect only if the estate is intestate. Here in this case, there was a settlement deed by the father. Therefore, Section 22 of the Hindu Succession Act for preferential right does not arise. Here the transfer in this case is not to a dwelling house. It was only a vacant site. The learned trial Judge misdirected himself and thereby granted the relief of preferential right in favour of the Plaintiff ignoring the fact that Section 44 of the Transfer of Property Act is not applicable to the facts of the case. Therefore, the judgment of the learned VI Additional Judge, City Civil Court in O.S.No.10824 of 2010, dated 31.01.2019 regarding the sale deed in favour of the second Defendant executed by the first Defendant dated 20.04.2009 is to be set aside and the the decree granting preferential right to the Plaintiff regarding the half share of the first Defendant that he had executed in favour of the second Defendant is also to be set aside.
23. The learned Senior Counsel for the Appellant relied upon the reported decisions in (2015) 3 Mah Law Journal 233 [Aloki, wife of Anandrao Idre and others vs. Gajanan Lahanuji Idre] submitted that the learned VI Additional Judge misconstrued the provisions of Section 44 of the 26/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 Transfer of Property Act and granted the relief in favour of Plaintiff as though it applies to the Plaintiff's case. In case of transferee, who has acquired the share of the dwelling house to undivided family and who is not a member of the family, nothing in this Section shall be deemed to entitle him to joint possession. The facts of the present case is that the Defendant-1 had transferred only the land mentioned in schedule 'B' property in favour of the Defendant-2. Admittedly, there is no dwelling house in suit 'B' schedule property and the same is evidenced by Ex.B-3 photograph. Therefore, it is clear that Section 44 of Transfer of Property Act applies only to transfer between the co-owners and the right of the transferee was dealt in section 44 of Transfer of Property Act. The same is not appliable to the facts of this case.
24. The learned Senior Counsel for the Appellant relied on the reported ruling in 2019 SCC OnLine Cal 1280 [Mousumi Mukhopadhyay vs. Sri Nikilesh Mukhopadhyay] whereby the Hon’ble Calcutta High Court elaborately dealt with provisions of Section of 44 of Transfer of Property Act. Ex.B-1 koorchit dated 10.07.1996 was admitted by both the parties and acted upon by both the parties. The Plaintiff had constructed building in the rear portion of the schedule 'A' mentioned property and collecting rents from the same. Based on the Koor Chit dated 10.07.1996, the first Defedant had excecuted sale deed marked as Ex.A-7, dated 20.04.2009, in favour of the 2nd 27/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 Defendant/Appellant. In fact, in Ex.A-5, reply notice dated 21.06.2006, the Plaintiff categorically admits the fact that by consent of both the parties, rear portion of the said property was occupied by the Plaintiff and constructed the building on his own costs. Therefore, the suit filed by the Plaintiff is not maintainable in view of the fact that the partition had already taken place and the parties have already taken possession of their respective share in schedule 'A' mentioned property. The suit filed by the Plaintiff is only an after thought just to grab the suit property without any authority. The 4 feet passage is already in existence in the pathway and the second Defendant who is the present owner of the schedule B mentioned property is willing to give one feet passage to the Plaintiff and making it as 5 feet passage as the very basis of filing the suit is only for the pathway. The sale deed which was marked as Ex.A-7 was acted upon by the parties and the execution of the same was also admitted by the first Defendant and his legal heirs. The Plaintiff cannot question the validity and execution of the sale deed. Therefore, the learned Senior Counsel for the Appellant prays this Court to accept the written submission and allow this Appeal filed by the Plaintiff and set aside the decree dated 31.01.2019 passed in O.S.No.10824 of 2010 on the file of the learned VI Additional Judge, City Civil Court, Chennai.
25. The learned Counsel Thiru.J.R.K.Bhavanandam appearing for the 28/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 Respondent-1 in the appeal/Plaintiff before the learned VI Additional Judge submitted his arguments. It is the contention of the learned Counsel for the first Respondent that the appeal itself is not maintainable as the second Defendant before the learned VI Additional Judge had not filed any written statement and not contested the suit before the trial Court. He had not let in evidence even though he was a party to the suit. He had not let in evidence to prove the sale deed and dispute the claim of the Plaintiff. Therefore, he is estopped from proceeding with the appeal. The claim that the Defendant-2 is a bona fide purchaser for value will not hold good in this case. The second Defendant was set ex parte by the learned VI Additional Judge, City Civil Court. Therefore, as on the date of the judgment, the dispute is between the brothers - the Plaintiff and the Defendant-1. The suit was decreed in favour of the Plaintiff. The Plaintiff offered to purchase the property. The Defendant-2 is a friend of the Defendant-1. Defendant-2 is residing just opposite the suit property. He is a real estate broker. He is a name lender. The sale deed claimed by the Defendant-1 in favour of Defendant-2 is nothing but a sham and nominal. The Defendant-2 did not have the resources to purchase the property as claimed in Ex.A-7 for Rs.8 lakhs.
26. The learned Counsel for the first Respondent in the Appeal had submitted that the son of the first Defendant as D.W-1 claim that the suit 29/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 property was sold for Rs.22 lakhs whereas, Ex.A-7 the value showed here is only Rs.8 lakhs. The sale deed under Ex.A-7 executed by Defendant -1 in favour of Defendant-2 is sham and nominal. He had not paid any amount. Till date the patta for the suit property is in the name of the mother of the Plaintiff and the Defendant-1. The second Defendant now cannot challenge the finding of the trial Court. The Defendant-2 was set up by the Defendant-1 only to usurp the property and cause loss to the Plaintiff. During trial Defendant-1 died. The son of Defendant-1 was examined as D.W-1.
27. The learned Counsel for the first Respondent invited the attention of this Court to the cross-examination of the first Defendant as D.W-1 and the son of the first Defendant as D.W-2. When the D.W-1 was in the witness box the D.W-1 died during trial. Therefore, the legal heirs of the first Defendant was impleaded as Defendants 3 to 5. The son of the first Defendant Muthuraman @ Varadarajan is the fifth Defendant. He was examined as D.W-
2. He had in his cross-examination admitted that the suggestion of the learned Counsel for the Plaintiff through his legal notice for amicable settlement was refused by the father of D.W-2 was admitted by him in his cross-examination. Therefore, koor chit cannot be relied. The suggestion of the learned Counsel for the Plaintiff to the D.W-2 son of the first Defendant that the Defendant-1 had executed a power of attorney deed in favour of the Plaintiff dated 30/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 30.06.1995 was admitted by him which was marked as Ex.A-8. He had claimed ignorance regarding the suggestion that until 2004, the water tax was paid by the grandmother, the mother of Plaintiff and first Defendant. D.W-2 in his cross-examination admitted that he came to know about the facts of the case only after the death of his father in 2014. He had claimed ignorance regarding the suggestion that till date of his examination, the property tax and the water tax for the suit property is still in the name of the deceased Dhanabackiyammal. D.W-2 in his cross-examination admitted that the property under Ex.A-7 was sold for Rs.23 lakhs to the second Defendant whether it was paid by the second Defendant as cash or cheque, he does not know. He denied the fact that it was a sham and nominal document and no consideration had been passed.
28. It is the contention of the learned Counsel for the first Respondent that the evidence of the Defendant indicates that Ex.A-7 sale deed executed by Defendant-1 in favour of Defendant-2 is sham and nominal and not for consideration. If the second Defendant had entered the witness box, he would have been confronted regarding his wherewithal to pay the amount mentioned in the sale deed under Ex.A-7. Apprehending the consequences, he had avoided the witness box. Therefore, Ex.A-7 is to be treated as sham and nominal and Defendant-2 was a person set up by Defendant-1 to cause loss to 31/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 the Plaintiff and to usurp the property of the Plaintiff. The frontage portion of the property that was settled in favour of the sons of Kanniah Reddy and Dhanabackiyammal was attempted to be sold to the second Defendant only to usurp the property by denying ingress and egress to the Plaintiff who had put up construction in the rear portion of the property. Therefore, the claim of the Plaintiff seeking right of preemption to purchase the property from the other co-owner is justified. Since the entire property is a dwelling house and vacant site, the vacant site cannot be sold. If it is sold, there is no ingress and egress for the Plaintiff to enjoy the property. If Ex.A-7 is not declared as null and void and if the sale deed is valid, then the consequences flowing from Ex.A-7 causes loss to the Plaintiff thereby he has to forfeit the right and the right granted by the father of the Plaintiff and Defendant-1 in favour of the Plaintiff becomes futile. He will not be able to enjoy the property. The consequences will be in favour of a person who had created sham and nominal document. The Defendant-2 who will be able to sell the entire property by getting the valuable property from the Plaintiff using the sham and nominal document under Ex.A-7 which cannot be compensated by money.
29. It is to be noted that the Defendant-1 had admitted in his cross examination that after his marriage, he left the joint family and set up separate residence. He had admitted in his cross-examination that he did not come and 32/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 attend his father when his father was injured in an accident, at that time, the Plaintiff and his wife alone were available in Chennai. The Defendant-1 as D.W-1 admitted that he was away on duty in a ship. He had also admitted that he did not come and meet his mother when she was hospitalised. He did not attend the funeral of his mother. That shows that the claim of the Plaintiff to be true. It is the contention of the Plaintiff that he resided with the joint family and took care of his parents. Therefore, during the lifetime of his mother, he constructed a building on the rear portion. After the death of the mother, the Defendant-1 forcibly evicted the sister of the Plaintiff, who was residing in the front portion and he had leased out the property and receiving rent. Only to cause loss to the Plaintiff, the Defendant-1 had created a document under Ex.A-7. Therefore, when the entire property is only 1600 square feet and the frontage had been sold by the evil designs of the Defendant-1 to Defendant-2, when the Defendant-2 had not entered the witness box, the Court has to draw adverse inference against the conduct of the Defendant-2. The Defendant-2 had not filed any written statement individually. He did not contest the case. He did not enter the witness box and let in evidence in support of the sale deed in his favour. The claim of Koorchit had been destroyed in the evidence as the Koorchit had not been executed, had come into reality. Based on the suggestion by the Plaintiff, it was agreed between the Plaintiff and Defendant-1 that a partition deed had to be entered into between them. Due to the conduct 33/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 of the Defendant-1 during his lifetime that the suggestions put forth by the Plaintiff was not heeded by the Defendant-1. The Defendant-1 had issued a reply notice under Ex.A-5 for the notice issued by the Plaintiff under Ex.A-4. Therefore, the contents of the Ex.A-5 indicates that the Koorchit had not been true. It was only a draft agreement for partition and not Koorchit as claimed by the Defendant-1. It is clearly stated in paragraph Nos.8 to 10 of the reply notice under Ex.A-5 which are extracted as under:-
“8. However, my client states that he is ready for partition as stated in para 6 of your legal notice. But your client is dodging to convey his mind on the drawings and the draft to do the further proceeding on partition by meeting the expenditure equally.
9. My client further states that a fresh drawing also can be prepared by giving five feet path up to the rear portion and this path will be kept as a common path for both and the balance area will be calculated and that can be equally shared.
10. My client further states that he only was taken care of his parents till their death. He further states that your client left his parent’s house immediately after his marriage and he had not paid any obligation for the property which he claims and expenses for taking electricity connection also been spent by my client. But he refused to share the 50% of expenditure for electricity connection that he had agreed at the time of mutual discussion. Therefore, you are hereby requested to advise your client to fix the date recordically to finalize the drawing and draft in front of you. My client also will be present on that day along with Counsel for proper settlement.”
30. In support of his contention, the learned Counsel for the first Respondent relied on the following reported decisions:
30.1. (2024) 2 MLJ 472 [Nachimuthu vs. Ramanan @ Ramasamy 34/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 (Died) and others] wherein this Court had held as follows:
“Registration - Inadmissibility for want of registration - Document evidenc-ing dual characteristics - Test of divisibility - The Registration Act, 1908, Sections 17 & 49 - Where a document divides the property, in praesenti, the same requires stamp duty and registration - A document embodying an d indivisible transaction affecting any right in immovable property cannot be received in evidence under Section 49 of the Act However, when the document evidences two transactions which are divisible, the personal obligation part, for example, an undertaking to pay a sum of money can be enforced and the rest of the document would have to be discarded - On facts, Ex A12 which extinguished the right of the defendants and created a new right in favour of the plaintiff would be hit by the bar under Section 49 [Paras 22-33] Appeal dismissed.” 30.2. 2019 (2) CTC 562 [Babu Ram vs. Santokh Singh (deceased) through his LRs and others] wherein the Hon'ble Supreme Court had held as under:
“Hindu Succession Act, 1956 (30 of 1956), Section 22 - Interpretation of Statutes - Preferential right of pre-emption given to heir of Hindu
-Applicability to Agricultural land - Purposive interpretation Object of Section 22 is ensuring Hindu Family property interests remained within family in favour of heirs, to exclusion of outsiders - If source of title or interest is purely through succession, provisions of Act apply - Right of pre-emption is conferred by Section 22 - Exercise of such right can be specified by same legislation and cannot be dissociated - Intent of Legislature inferred by comparing relevant Entries in Constitution with those in Government of India Act, 1935 - Held, right of pre-emption of heir of a Hindu under Section 22 applies to Agricultural property also - No infirmity, therefore, in ruling of High Court - Vaijanath v. Guruamma, reiterated - Rulings in Roshan Lal, Laxmi Debi and Amar Singh, upheld - Rulings in Jaswant and Prema Devi overruled.” 30.3. (1999) 3 SCC 457 [Iswar Bhai C. Patel alias Bachu Bhai Patel vs. Harihar Behera and another] wherein the Hon'ble Supreme Court had held as follows:-
35/58
https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 “B. Civil Procedure Code, 1908 - Or. 1 R. 3 and Or. 2 R. 3 - Object of
-Joinder of parties and of causes of action - Or. 1 R. 3 and Or. 2 R. 3 read together indicate that the question of joinder of parties involves joinder of causes of action - The basic principle is that as a person is made a party in a suit because there is a cause of action against him, so, when causes of action are d joined the parties are also to be joined.”
31. Relying on the above decisions, the learned Counsel for the first Respondent submitted that the Defendant-2 before trial Court cannot maintain the Appeal as he was a party to the dispute before the trial Court. Since the Deffendant-1 executed the sale deed in favour of the Defendant-2 causing inconvenience, difficulties and resulting in loss to the Plaintiff in enjoying his property, he had to lose his property to the designs of Defendant-1 and Defendant-2. Therefore, he had sought preferential right from the other co- owner, the Defendant-1, as the Defendant-1 had attempted to alienate the property of the frontage portion vacant site to the Defendant-2, the Defendant-2 did not contest the suit even though he was impleaded as a necessary party. The Appeal filed by the Defendant-2 who remained exparte before the trial Court who did not contest the case, who did not let in evidence cannot be heard in this Appeal and the Appeal Suit is to be dismissed.
Point for determination:
Whether the judgment and decree dated 31.01.2019 made in O.S.No.10824 of 2010 on the file of the learned VI Additional 36/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 Judge, City Civil Court, Chennai, is to be set aside as perverse?
32. Heard the learned Senior Counsel Mr. S. Parthasarathy for Mr.M.Muthappan, learned Counsel for the Appellant and Mr.J.R.K.Bhavanantham, learned Counsel for the first Respondent.
33. The status of the parties are hereinafter referred to as per their status in the suit as “Plaintiff” and “Defendants”.
34. Perused the plaint, written statement, depositions of Plaintiff as P.W-1 and first Defendant as D.W-1 and fifth Defendant son of first Defendant as D.W-2 and the judgment dated 31.01.2019 made in O.S.No.10824 of 2010 by the learned VI Additional Judge, City Civil Court, Chennai.
35. On perusal of the judgment, it is found that the learned Judge had properly analysed the evidence and answered the issues 1 to 7 in favour of the Plaintiff. The submission of the learned Senior Counsel for the Defendant-2 if accepted by pressing into service a sale deed for 660 square feet, the frontage of the entire site, thereby denying the common pathway to the rear portion of the Plaintiff will cause the Plaintiff to lose his property to the evil designs of the Defendant-1with the Defendant-2.
37/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019
36. The submission of the learned Counsel for the Plaintiff Thiru.J.R.K.Bhavanantham, cannot be ignored lightly. The fact that the Defendant-2 did not file written statement, did not let in evidence indicates that he was shy of entering the witness box as the claim made by the Plaintiff that the sale deed under Ex.A-7 executed by the first Defendant in favour of the Defendant-2 is sham and nominal will be proved through cross examination by confronting the Defendant-2 if he ever entered witness box. Therefore, the Defendant-2 had not let in evidence and had not filed any written statement. The son of the Defendant-1 as Defendant-5 as D.W-2 had claimed in his cross examination that he came to know about the facts of the case only after the death of his father. When he was confronted regarding the details regarding the enjoyment of the property, he was unable to answer the questions or suggestions put to him, he had claimed ignorance of those facts. The claim that the water tax and the property tax are till date continues in the name of his grandmother, he claimed ignorance. The Defendant-1 as D.W-1 in his evidence stated that the suit property was sold for valuable consideration of Rs.8,64,000/- to the Defendant-2. Whereas the son of the Defendant-1, Defendant-5 as D.W-2 in his evidence states that the property was sold for value of Rs.23,00,000/-. If that be the case, what had been stated under Ex.A-7 is an imaginary value, only for the purpose of creating a sale deed. 38/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019
37. It is the contention of the learned Counsel for the Plaintiff that the Defendant-2 who is residing on the opposite side of the suit property is a real estate broker he does not have the wherewithal to purchase the property. That cannot be treated lightly considering the fact that he had co-operated with the Defendant-1 in getting a sale deed for the frontage of the portion i.e., ingress and egress, entry to the property is from Sambangi Street, which is the loss to the Defendant-2 by the Plaintiff through the Defendant-1 without the knowledge of the Plaintiff. Therefore, in cases involving dwelling house where it cannot be partitioned, the Section 22 of The Hindu Succession Act comes to play. The claim made by the Senior Counsel for the Defendant-2 that the judgment of the learned VI Additional Judge granting a decree declaring the sale deed dated 20.04.2009 as sham and nominal and null and void causes injustice to the Defendant-2 cannot be accepted in the light of the reported ruling in (2024) 2 MLJ 472 [Nachimuthu vs. Ramanan @ Ramasamy (Died) and others]. Here, the Defendant-1 claimed that he had executed sale deed in favour of the Defendant-2 based on Koorchit.
38. As per the exchange of notices between the Defendant-1 under Ex.A-4 and the Plaintiff under Ex.A-5, it was only a draft partition deed for approval. As per the reply notice under Ex.A-5, dated 21.06.2006, the 39/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 Defendant-1 had not been co-operating with the Plaintiff for an amicable partition. In the reply notice, the Plaintiff's Counsel Thiru.J.R.K.Bhavanantham had clearly stated that his client, the Plaintiff is ready to visit the learned Counsel who issued notice under Ex.A-4 for an amicable partition to execute a registered partition deed. As the Plaintiff apprehended that after the death of the parents of Plaintiff, the Defendant-1 had forcibly attempted to prevent enjoyment of the property by the Plaintiff who had put up construction during the lifetime of the mother of the Plaintiff and Defendant-1 in the rear portion of the property leaving out the titled house in the front portion and the vacant site in the front portion. Regarding the enjoyment, the Defendant-5, the son of the Defendant-1 as D.W-2 was unable to answer the suggestions put to him in cross examination by the learned Counsel for the Plaintiff. During the lifetime of the Defendant-1 as D.W-1 when he was in the witness box when he was cross examined, he admitted that he was not residing with the parents after his marriage and he was away on duty in a ship and he could not attend his father when his father was hospitalized after suffering injury in an accident. Similarly, he was unable to meet his mother when she was hospitalized. He could not attend funeral of his mother, as he was away on duty in a ship. Therefore, what had been stated by the Plaintiff in the plaint that he was residing with the joint family, taking care of his parents, he put up construction during the lifetime of his mother in the rear portion of the house and he was 40/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 enjoying the house had been proved. When that had been the case, the attempt of the Defendant-1 in executing a sale deed under Ex.A-7 dated 20.04.2009 claiming Koorchit executed by the Plaintiff in his own handwriting will not help the Defendant-2 to claim that the judgment of the learned VI Additional Judge, City Civil Court, in declaring the sale deed as null and void as the Defendant-2 had not let in evidence to prove the sale deed as true and bona fide.
39. If the Defendant-2 had let in evidence either as D.W-3 or as D.W- 2, he ought to have supported the sale deed. He would have been confronted regarding his wherewithal to purchase the sale deed for valuable consideration. He took the risk of avoiding the witness box. Therefore, a person who had not contested the suit for partition who had not entered the witness box cannot be permitted to challenge the judgment.
40. The reliance placed by the learned Senior Counsel for the Defendant-2 in the reported ruling in 2019 SCC OnLine Cal 1280 [Mousumi Mukhopadhyay vs. Sri Nikilesh Mukhopadhyay] is a fact where Section 22 of the Hindu Succession Act, 1956 and Section 44 of the Transfer of Property Act, 1882 cannot be pressed into service when the property was already sold. The fact that the Section 44 of the Transfer of Property Act, 1882 and Section 41/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 22 of the Hindu Succession Act, 1956 can be exercised before alienating the right of pre-emption can be applied before effecting transfer.
41. In the reported decision, the Appellant before the Hon'ble Calcutta High Court had filed petition under Order VII, Rule 11 of C.P.C before the trial Court was rejected by the trial Court. In the revision, the learned Judge had held that the Plaintiffs before the trial Court had in their plaint stated that “they are residing abroad due to their avocation and visit India time to time every year. The Plaintiffs had categorically prayed for recovery of possession in respect of 2nd and 3rd floor of the suit property, thereby implicitly admitting that they are not in possession of the said portions. In such a scenario, it is obvious that the suit property is not being used as a dwelling house by the Plaintiffs themselves, let along beloning to an undivided family. Not only are the opposite parties staying abroad, for their profession or for whatever other purpose, they are also not using the property as a dwelling house belonging to an undivided family. 8. The expression “dwelling house” in the second limb of Section 44 of the Transfer of property Act has to be read in conjunction with the next phrase use in the said section, that is, “belonging to an undivided family”. The present property having not been divided, the said criterion under Section 44 of the Transfer of Property Act could not be attracted for the purpose of granting relief (c) as prayed for by the opposite parties.” 42/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019
42. The facts of the above reported decision will not be applicable to the facts before this Court. Here the facts are different. The Plaintiff had clearly stated in his plaint that he had put up construction on the rear portion of the property during the life time of his mother, and he had been in enjoyment of the same. In the same plaint, he had clearly stated that the Defendant-1 had separated from the joint family after his marriage. He had not maintained the parents. He had not attended the funeral of his mother. He had not attended when his father was injured in an accident and hospitalised. The Plaintiff was all along with his parents till their death. After the death of the parents the Defendant-1 exercising his right based on the settlement deed executed by father of the Plaintiff and Defendant-1 had attempted to grab the property by executing a sale deed in favour of Defendant-2 without the knowledge of the Plaintiff thereby denying ingress and egress to his property. The attempt of the Plaintiff to get 5 feet broad pathway from Sambangi Street to rear portion was denied by the Defendant-1. That is the gist of the Plaintiff's case.
43. Prior to the filing of the suit, there had been exchange of notices between the Defendant-1 and Plaintiff as per Ex.A-4 and Ex.A-5. Therefore, the claim that Plaintiff and Defendant-1 acted upon koorchit will not hold good. The claim that the right of pre-emption cannot be exercised after 43/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 creating a sale deed in the light of the reported decision in 2019 SCC OnLine Cal 1280 [Mousumi Mukhopadhyay vs. Sri Nikilesh Mukhopadhyay] is not applicable to the facts of this case. Here the facts are different. By creating Ex.A-7 the Defendant-1 had denied access to the Plaintiff to use his property thereby defeating the intention of the father of the Plaintiff and Defendant-1 to enjoy the properties amicably. The attempt of the Plaintiff in taking the rear portion voluntarily when the Defendant-1 was not at all along with the joint family during the life time of the mother of the Plaintiff shows his respect for the intention of the father of the Plaintiff and Defendant-1 to enjoy the property amicably. The continuous attempt of the Plaintiff for an amicable settlement was not heeded to by the Defendant-1. The attempt of Defendant-1 in creating Ex.A-7 causes the intention of the father of Plaintiff and Defendant-1 to be defeated resulting in loss of the property by the Plaintiff to the evil design of the Defendant-1. Therefore, the arguments of the learned Senior Counsel for the Defendant-2 relying on the ruling of the High Court of Calcutta will not help the Defendant-2.
44. The ruling of the Bombay High Court reported in (2015) 3 Mah Law Journal 233 [Aloki, wife of Anandrao Idre and others vs. Gajanan Lahanuji Idre] will not hold good to the facts of this case. In the reported decision, it is held as follows:
44/58
https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 “9. The short issue therefore that requires determination is whether the plaintiffs had a preferential right under the provisions of section 22(1) of the said Act to purchase the suit property. As per the averments made in the plaint, it was the specific case of the plaintiffs that till the year 1957, all the brothers were joint in mess and estate. After partition was effected in the year 1957, field Survey No. 482 went to the share of defendant No. 2, field Survey No. 483 went to the share of plaintiff No. 1 and field Survey No. 485 went to the share of plaintiff No. 2. In para 2 of the plaint it was pleaded that besides aforesaid properties, other fields and house properties were also partitioned. It is not in dispute that field Survey No. 482 that was allotted to the defendant No. 1 in aforesaid partition was sold by him to the defendant No. 2 on 27-2-1996.
10. Section 22(1) of the said Act on the basis of which the plaintiffs claim relief reads thus:
“Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.”
12. In Ghanshyam (supra) it was observed that on partition taking place between the parties, provisions of section 22 of the said Act would not apply. Similar view has been expressed in Bhagirathi Chhatoi (supra).
13. As regards the decision relied upon by the learned counsel for the appellants in Bharat Machindra Parekar (supra) the question which arises in the present case did not fall for determination therein. It was held that even if the transfer was complete, the right of pre-emption under section 22(1) of the said Act was not obliterated. Similarly, the decision in the case of Ganesh Chandra Pradhan (supra) also does not decide the question that arises in the present case.”
45. In the reported decision, there was partition between the parties. Based on which, the properties were enjoyed by them. The case before the Court in the reported decision was right of pre-emption regarding agricultural property for which the Plaintiff had filed the suit seeking right of pre-emption 45/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 when one of the brothers sold the agricultural property. The suit was decreed by the trial Court. The first Appellate Court, on re-appreciation of evidence, based on earlier rulings of the Court held that the judgment of the trial Court is erroneous and thereby dismissed the suit of the Plaintiffs. Aggrieved the Plaintiff had preferred the Second Appeal. In the Second Appeal, the question framed by the substantial questions framed was :
As to whether under the provisions of Section 22 of the Hindu Succession Act, the Plaintiffs were entitled to have preferential right to purchase the suit land whether they complied with the provisions of Section 22 of the said Act?
46. On consideration of the submission of the rival parties before the Bombay High Court, in the light of the reported decisions in 2011 SCC OnLine Chh 289 [Ghanshyam vs. Sanghmitra Datta] and AIR 1988 Orissa 285 [Bhagirathi Chhatoi vs. Adikanda Chhatoi and others], the Bombay High Court had held that the second appeal is not maintainable and answered the substantial question of law against Appellants/Plaintiffs. The Plaintiffs are not entitled to any preferential right in purchasing the suit property (agricultural property). Here, the property is a dwelling house. Here the dispute is with regard to dwelling house where the Plaintiff had recognising the equal right of the Defendant-1 had taken up the rear portion he being the younger brother and the Defendant-1 being the elder brother. He volunteered to take the rear portion during the life time of the mother of the Plaintiff and 46/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 the Defendant-1, even though the Defendant-1 was not living with the joint family with the aged parents, the Plaintiff accepted the intention of the father of the Plaintiff and Defendant-1 and volunteered to take up the rear portion and put up construction leaving 5 feet path way for his ingress and egress from the Sambangi street. While so, the Defendant-1 in order to defeat the intention of the father of the Plaintiff and Defendant-1, created Ex.A-7 thereby denying ingress and egress.
47. The suggestion of the learned Senior Counsel for the Defendant-2 in the argument that the Defendant-2 is ready to give one feet extra then what had been agreed in the Koorchit will not be accepted by this Court at this stage. As pointed out by the learned Counsel for the Plaintiff before this Court Thiru.J.R.K.Bhavanantham that the Defendant-2 had not entered the witness box, not filed written statement in order to protect his right to protect Ex.A-7 sale deed in his favour. Without evidence, the arguments of the learned Senior Counsel that the Defendant-2 was willing to give 5 feet pathway to the Plaintiff will not hold good when the Defendant-1 had denied the same by executing a sale deed for the entire frontage. If there had been evidence through the 2nd Defendant before the trial Court, there could have been an amicable settlement also. When that is lost, now at this stage, the Defendant-2 who did not file written statement, who did not let in evidence cannot be heard to grant one feet 47/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 extra land for ingress and egress for the Plaintiff. It is to be noted that the attempt of the Plaintiff had been proved through the reply notice under Ex.A-5. Therefore, the facts of the reported ruling will not be applicable to the facts of this case in O.S.No.10824 of 2010 before the learned VI Additional Judge, City Civil Court. The only option available to the Defendant-2 is to accept the judgment of the learned VI Additional Judge in the principles of fairness, equity and good conscience which governs the Civil Court in granting reliefs. The learned Judge had properly appreciated the evidence and arrived at a conclusion based on materials available before him. The interpretation that only intestate properties the co-parceners are entitled to get right of pre- emption cannot be applied to the facts of this case as the Defendant-1 had not responded to the suggestions of the Plaintiff giving a rough draft plan for his approval which he did not respond in time and he himself issued notice under Ex.A-4 calling upon for partition. Under those circumstances, when the Defendant-1 in collusion with Defendant-2 had caused loss or attempted to cause loss, automatically the property under Ex.A-7 has to be rejected as sale deed as null and void and in equity the right of pre-emption has to be granted to the Plaintiff as he cannot use the property. The intention of the principles of pre-emption is to enjoy the property particularly dwelling house by the co- owners or the persons having right to enjoy. The intention of the father of the Plaintiff and Defendant-1 by executing settlement deed in favour of the mother 48/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 of the Plaintiff Dhanabakyammal to enjoy the property during her lifetime and after her life time, to enjoy the property by her two sons is defeated by the attempt of the Defendant-1 who never resided with the parents after his marriage till the death of the parents and he cannot be permitted to defeat the good intention of his father for enjoyment of the properties by both the sons amicably. The attempt of the Plaintiff seeking amicable partition by giving draft for approval was not responded by the Defendant-1. Instead, he had caused loss by his conduct by creating Ex.A-7. Therefore, the facts of the reported ruling and the submission for the learned Senior Counsel that Section 22 of the Hindu Succession Act and Section 44 of the Transfer of Property Act cannot be applied to the facts of this case. If accepted, will defeat the intention of the father of the Plaintiff and Defendant-1. The submission of the learned Senior Counsel for the Defendant-2 that the Defendant-2 is willing to give 1 feet extra for usage of the 5 feet pathway by the Plaintiff, also cannot be accepted at this stage when Defendant-2 had not filed written statement and let in evidence. The submission is contra to the sale deed under Ex.A-7 where Defendant-1 had denied the pathway to the Plaintiff. Therefore, the rulings relied by the learned Counsel for the Senior Counsel for the Defendant-2 in (2015) 3 Mah Law Journal 233 [Aloki, wife of Anandrao Idre and others vs. Gajanan Lahanuji Idre] is not applicable to the facts before this Court. Hence, it is rejected.
49/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019
48. As per the reported ruling in (2024) 2 MLJ 472 [Nachimuthu vs. Ramanan @ Ramasamy (Died) and others], when the right in the immovable property is altered, transferred, there shall be a deed to be properly stamped document under the Stamp Act and there shall be a registered deed as per the earliest ruling of this Court in (1890) ILR 13 Mad 308 [Sambayya vs. Gangayya]. The view in (1884) ILR 8 Mad 182 [Venkatrayadu vs. Papi] was followed in (1972) 3 SCC 799 [Mattapalli Chellamayya vs. Mattapalli Venkataratnam]. The learned Judge of this Court had observed as under:
“Therefore, the document which is an indivisible transaction if it affects the right in any immovable property cannot be received in evidence by virtue of Section 49. However, when the document evidences two transactions whcih can be separated from each other, the personal obligation part, for example:- to pay a sum of money can be enforced and the rest of the part would have to be discarded.”
49. Koorchit cannot be pressed into service as the reply under Ex.A-5 clearly states that the suggestion for amicable settlement put forth by the Plaintiff was not heeded to by the Defendant-1 as per the reply notice under Ex.A-5. Therefore, what had been described as the Koorchit by the Defendant- 1 in the written statement cannot be pressed into service to create a document under Ex.A-7 as sale deed as the Defendant-1 had on the basis of the koorchit had the right to alienate his share. As per the sale deed under Ex.A-7, the undivided portion alone is sold and the koorchit had not come into existence as 50/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 it is not a Koorchit. It is only a draft partition deed for approval by the Plaintiff which was not acted upon either by the Plaintiff or by the Defendant-1 as per the reply notice under Ex.A-5. The dispute between the brothers for an amicable partition had not resulted in an amicable settlement. When that be the case, the draft sent for approval was put to use without the knowledge of the Plaintiff by the Defendant-1 for his selfish interest to cause loss to the Plaintiff by creating a document under Ex.A-7. The Defendant-2 was aware of all these transactions. That is why, he was shy of entering the witness box. He did not file a separate written statement either supporting the Defendant-1 or independently to protect his right under Ex.A-7 or denying the plaint averments that affect his right under Ex.A-7. When the Defendant-2 had not at all taken part in the suit proceedings by letting evidence to protect his right, he cannot be heard to claim that the judgment of the learned VI Additional Judge, City Civil Court in O.S.No.10824 of 2010, dated 31.01.2019, regarding the decree in favour of the Plaintiff declaring that the sale deed executed by Defendant-1 in favour of Defendant-2 dated 20.04.2009 is null and void. The claim of the Defendant-1 regarding the Koorchit was also rejected by the learned VI Additional Judge, City Civil Court stating, the Koorchit dated 10.07.1996 was an unregistered, unstamped one and therefore, no effective partition had taken between them. The finding of the learned VI Additional Judge in Paragraph 45 cannot be found perverse and cannot be treated as perverse as it is a well 51/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 reasoned judgment. The paragraph 45 is extracted as under:
“45. Therefore, since the suit property is the property purchased by the father of the Plaintiff and the 1st Defendant, the Plaintiff is having pre-emptive right over the suit schedule of property than any other third person and therefore, the sale deed dated 20.4.2009 is liable to be set aside and to be declared as null and void since as per section 44 of the Transfer of property Act, the transferee of a share of a dwelling house, if he or she is not a member of that family, gets no right to joint possession or common enjoyment of the house and the outsider can only ask for partition and sue for separate possession of his share in that property.”
50. In the light of the finding under paragraph 45, the finding of the learned VI Additional Judge in paragraph 46 holding that the Plaintiff has the right to seek declaration that the Plaintiff is entitled preferential right is also found acceptable and well reasoned.
51. If the judgment of the learned VI Additional Judge regarding Ex.A-7 that the sale deed is null and void is to be set aside, the consequences flowing from such judgment will be the valuable property of the Plaintiff who had been all along with his parents and who had put up the construction in the rear portion of the property during the lifetime the mother of Plaintiff and Defendant-1 from his own earnings as he was employed in BHEL. The Defendant-1 was not at all with his parents after his marriage. Even during the death of his parents, he had not attended the funeral. Only after death of the parents, on the basis of the settlement deed executed by his father to both sons 52/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 after the lifetime of their mother, the Defendant-1 attempting to get hold of the property cannot be accepted in equity. The claim of the Plaintiff for right of pre-emption is found justified as if it is refused, he has to lose the property and the settlement of the father for his sons will be negatived by the conduct of the Defendant-1 who had not been with the parents after his marriage, till the death of the parents.
52. The conduct of the Defendant-1 after the death of the parents to assert his right by creating a document under Ex.A-7 in favour of Defendant-2 in order to deny the ingress and egress of the Plaintiff from Sambangi Street who had been all along with his parents till their life time cannot be accepted by any Court of law under the principles of fairness, equity and conscience which governs the civil Court in granting the relief. Here, the Plaintiff had attempted his level best for an amicable partition by seeking 5 feet pathway as a common pathway from Sambangi Street to the rear portion where he had put up construction. The Defendant-1 had not co-operated with the Plaintiff when he had offered a draft plan with suggestions as per the reply notice under Ex.A- 5 dated 21.06.2006 to the notice under Ex.A-4 issued on behalf of the Defendant-1. Therefore, the claim of Koorchit by the Defendant-1 in the written statement cannot be accepted in any Court of law. As it was not a Koorchit. It was only draft partition deed for approval of the Defendant-1 for 53/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 which the Defendant-1 did not send any response for creating a registered partition deed, for executing a registered partition deed. Under those circumstances, the attempt of the Defendant-1 in causing loss in creating encumbrances on the pretext of the so-called Koorchit dated 10.07.1996 will not cloth him to create a sale deed under Ex.A-7, dated 20.04.2009. Therefore, under equity, this Court has to uphold the finding of the learned VI Additional Judge, City Civil Court, that the sale deed dated 20.04.2009 executed by Defendant-1 in favour of Defendant-2 is null and void. Since the suit property cannot be enjoyed, when the Defendant-1 creates encumbrances to third parties, the Court exercising discretion under equity has to necessarily decree the suit for Plaintiff for right of pre-emption.
53. In the light of the above, the judgment of the learned VI Additional Judge, City Civil Court in O.S No.10824 of 2010, dated 31.01.2019 regarding the right of the Defendant-1, regarding right of pre-emption of the Plaintiff, regarding the finding that the Koorchit cannot be accepted, is also found justified. In the light of the judgment of the learned VI Additional Judge, the attempt of the Defendant-1 having executed a sale deed under Ex.A-7 dated 20.04.2009 in favour of the Defendant-2 has to be declared as null and void.
There is no acceptable reason for this Court to set aside the judgment of the learned VI Additional Judge, City Civil Court, holding the sale deed dated 54/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 20.04.2009 executed by the Defendant-1 in favour of Defendant-2 as null and void, as perverse.
54. Further, as per the settled proposition of law laid down by the Hon'ble Supreme Court in the reported decisions in Betal Singh -vs- State of M.P. reported in (1996) 8 SCC 205 and in V.Sejappa - Vs - State reported in 2016 (12) SCC 150, while appreciating the evidence before the Trial Court, the Trial Court had arrived at a conclusion based on proper appreciation of evidence and the Appellate Court shall not disturb the finding of the Trial Judge, even though there is a possibility of arriving at an opposite finding on the same set of evidence by the Appellate Court. This is because, the Trial Judge had the advantage of observing demeanor of witnesses which is not available before the Appellate Court. Therefore, the finding recorded by the Trial Court shall not be disturbed in the usual course. The Appellate Court have to be cautious on appreciating the evidence of the Trial Court.
55. In the light of the above discussion from paragraph 34 to 54, the point for determination is answered in favour of the Plaintiff and against the Defendant-2. The judgment dated 31.01.2019 made in O.S.No.10824 of 2010 by the learned VI Additional Judge, City Civil Court, Chennai, is found well reasoned judgment. That does not warrant any interference by this Court and 55/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 the same is to be confirmed.
In the result, this Appeal Suit is dismissed with cost throughout. The judgment dated 31.01.2019 in O.S.No.10824 of 2010 passed by the learned VI Additional Judge, City Civil Court, Chennai, is confirmed. Consequently, connected miscellaneous petition is closed.
03.07.2025
srm
Index : Yes/No
Internet : Yes/No
Speaking/Non-speaking order
To
1. The VI Additional Court,
City Civil Court,
Chennai.
2. The Section Officer,
V.R. Section,
High Court Madras.
56/58
https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm )
A.S.No.806 of 2019
57/58
https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm ) A.S.No.806 of 2019 SATHI KUMAR SUKUMARA KURUP, J., srm Judgment made in A.S.No.806 of 2019 03.07.2025 58/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:38 pm )