Madras High Court
S.Sivakumar vs Vijayalakshmi on 6 July, 2021
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
CRP.PD.No.2405 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.07.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.PD.No.2405 of 2018
and
C.M.P.No.14845 of 2018
1. S.Sivakumar
2. Anjalai Devi ... Petitioners
Vs.
Vijayalakshmi ... Respondent
PRAYER: The Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the order passed by the Additional Sub
Judge, Puducherry dated 01.02.2018 passed in I.A.No.854 of 2017 in
O.S.No.186 of 2012.
For Petitioners : Mr.Cyril Vincent for
M/s.Fox Mandal and Associates
For Respondent : Mr.R.Mugundhan for
Mr.V.Vasanthakumar
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CRP.PD.No.2405 of 2018
ORDER
This Civil Revision Petition is directed as against the fair and decretal order passed in I.A.No.854 of 2017 in O.S.No.186 of 2012 dated 01.02.2018 on the file of the learned Additional Sub Judge, Puducherry, thereby dismissing the petition for rejection of plaint.
2. The petitioners are the defendants 1 and 4. The respondent is the plaintiff. The respondent filed the suit for partition in respect of the suit property. While pending the suit, the petitioners herein filed a petition for rejection of plaint and the same was dismissed. Aggrieved by the same, the present Civil Revision Petition is filed.
3. The learned Senior Counsel appearing for the petitioners submitted that the respondent herein is the sister and the second petitioner is the wife of the first petitioner herein. The second and third defendants in the suit are sisters. The suit property originally belonged to their father Sivanandam. After his demise, the respondent along with her sisters executed registered release deed dated 15.03.2001 in respect of their respective 1/6th share in the suit property in favour of the first defendant, her mother and brother. 2/11 https://www.mhc.tn.gov.in/judis/ CRP.PD.No.2405 of 2018 Thereafter, her brother also executed a release deed and thereby, relinquished his half share in the suit property to the first defendant by release deed dated 29.04.2002. In respect of the mother's share is concerned, she also executed Will in favour of the petitioner on 20.09.2001. On the strength of the release deeds as well as the Will executed by his mother, he executed the Will dated 23.11.2010 in favour of the second petitioner viz., the first petitioner's wife. Thereafter, on 22.11.2012, the present suit was filed by the respondent herein for partition in respect of very same property that too without challenging the release deed executed by her dated 15.03.2001 and also the release deed executed by another brother dated 29.04.2002. At any costs, the plaintiff has lost her right seeking any partition for the suit property. The release deed was executed by the plaintiff and her two sisters in the year 2001 and it is a registered one. It was executed on receipt of a sum of Rs.50,000/- each and executed the same. The younger brother of the petitioner also received a sum of Rs.1 lakh in respect of half of his share over the suit property and released his right in favour of the petitioner herein. Therefore, the suit itself is barred by limitation and it is not at all maintainable for the reason that the suit has been filed without challenging the release deeds and the Will executed in 3/11 https://www.mhc.tn.gov.in/judis/ CRP.PD.No.2405 of 2018 favour of the petitioners.
4. Per contra, the learned counsel for the respondent submitted that the respondent filed the suit claiming his 1/12th share that too in respect of the share of her mother. On the basis of the alleged Will said to have been executed by the mother of the first petitioner, he executed a Will in favour of the second petitioner herein viz., the first petitioner's wife. Therefore, the said Will is not binding on the respondent herein and she need not challenge the same. That apart, the suit has cause of action to claim her 1/12th share in the suit property in respect of the share of her mother. Therefore, it cannot be rejected on the ground that the respondent is not entitled to have any share.
5. Heard the learned Senior Counsel appearing for the petitioner as well as the learned counsel for the respondent.
6. The petitioners are the defendants 1 and 4 and the respondent is the plaintiff. The respondent filed the suit for partition in respect of the suit property situated at No.16-A, Cross Street, Door No.62 Avvai Nagar, Puducherry, Comprised in Kathasthar No.1101, Pymash No.2723, 2724 and 4/11 https://www.mhc.tn.gov.in/judis/ CRP.PD.No.2405 of 2018 2755 and Resurvey No.202/27, Saram Revenue Village to an extent of 1800 sq.ft (167.44 sq.m) situated within the Oulgaret Komune and lying with the Registration District of Puducherry and Registration District Oulgaret. The first petitioner and the respondent are the brother and sister. Their father M.S.Sivanandam and their mother Kanagambujam gave birth to two sons and two daughters. The suit property belonged to the said M.S.Sivanandam. After his demise the respondent along with her another sister and grandmother executed release deed dated 15.03.2001 in favour of the first and third defendants and the mother of the plaintiff.
7. On a perusal of the release deed dated 15.03.2001, which reads as follows:-
“....fPH;fz;lr; brhj;jpd; nghpy; v';fSf;Fupa Mwpy;
K:d;W ghf cupikfis j';fs; K:tUf;Fk; tpLjiy bra;Jf;bfhLj;Jtpl tpUk;gp ,jw;F gpujp gpunah$dkhf eh';fs; egu; xUtUf;F U:gha;/50.000-? Ik;gjhapuk; tPjk; Mf TLjy; bjhif U:gha;/1.50.000-? XU yl;rj;J Ik;gJ Mapuj;ija[k; eh';fs; j';fsplkpUe;J buhf;fkhf bgw;Wf;bfhz;L tpl;lgoahy; fPH;fz;lr; brhj;jpd; ngupy; v';fSf;Fz;lhd Mwpy; K:d;W ghf cupikfis j';fs; K:tUf;Fk; g{uzkhf tpLjiy bra;Jf; bfhLj;J tpl;nlhk;/ 5/11 https://www.mhc.tn.gov.in/judis/ CRP.PD.No.2405 of 2018 ,d;W Kjy; fPH;fz;lr;brhj;jpd; ngupy; j';fs; K:tUf;Fk; cs;s midj;J cupikfSld;. v';fSf;Fupa cupikfis nru;j;J. brhj;jpy; gl;lh cupikfis j';fs; bgaUf;F khw;wk; bra;Jf;bfhz;Lk;. brhj;jpd; midj;J tuptha;jhf;fis j';fs; bgaUf;F brYj;jpfb; fhz;Lk; vd;bwd;Wk; g[jj; pu bgsj;jpu ghuk;gupakha; ru;t Rje;jpu ghj;jpaj;Jld; xj;jp jhdhjp tpdpka tpf;fpua';fSf;F mUfijaha; Mz;L mDgtpj;Jf; bfhs;s ntz;oaJ/”
8. Accordingly, the respondent and along with her sister and grandmother received a sum of Rs.1,50,000/- and released their respective rights over the suit property in favour of the first petitioner and his younger brother. Thereafter, the younger brother of the first petitioner viz., Kesavan also executed a release deed dated 29.04.2002 in respect of half of his share over the suit property in favour of the first petitioner herein.
9. On a perusal of the release deed dated 29.04.2002, which reads as follows:-
“.....,jdoapy; fz;l brhj;jpd;kPJ vdf;F ,Uf;Fk; Mwpy; xU ghf cupikia ehd; ,jd;K:yk; c';fSf;F iftpl;L tpLjiy bra;Jf;bfhLj;JtplL ; ,jw;F gpujpgpunah$dkhf ehd;
cd;dplkpUe;J fPH;f;fz;l rhl;rpfs; Kd;g[ U:gha;/1.00.000/- xU 6/11 https://www.mhc.tn.gov.in/judis/ CRP.PD.No.2405 of 2018 yl;rk; buhf;fkhf bgw;Wf;bfhz;Ltpl;nld;/ ,d;W Kjy; ,jdoapy; fz;l brhj;jpd;kPJ cdf;F ,Uf;Fk; Mwpy; Ie;J ghf cupiknahL vdf;F tuf;Toa Mwpy; xU ghf cupika[k; ePnu nru;jJ ; mile;J ru;t Rje;jpukha;.
jhdhjp tpdpka tpf;fpua';fSf;F mUfijaha; Mz;L mDgtpjJ ; f;bfhs;s ntz;oaJ/ ,dpnky; fPH;f;fz;l brhj;jpd;kPJ ghf ghj;jpakhfnth my;yJ ntW tifapnyh. vdf;nfh. vd;Dila thupRfSf;nfh vt;tpj cupika[k; ghj;jpaija[k;. gpd; bjhlu;rr; pa[k; fpilahJ/ ,dpnky; ekf;Fs; uj;jg; ghj;jpa cwitj;jtpu ntW brhj;Jg;ghj;jpak; vJt[k; fpilahJ/ nkYk; fPH;ff; z;lbrhj;jpid j';fs; bgaUf;F gl;lh khw;wk; bra;Jf;bfhs;s vdf;F vt;tpj Ml;nrgida[k; fpilahbjd;W ,jd;K:yk; cWjpTWfpnwd;/”
10. Accordingly, the younger brother of the first petitioner received a sum of Rs.1 lakh and released his right in favour of the first petitioner herein in respect of the suit property. Thereafter, the first petitioner's mother Kanagambujam executed the Will in favour of the first petitioner herein in respect of her 1/3rd share of the suit property. Therefore, the first petitioner herein become absolute owner of the suit property on the strength of the release deeds executed by the respondent, his another sister and grandmother and her younger brother dated 15.03.2001 and 29.04.2002 7/11 https://www.mhc.tn.gov.in/judis/ CRP.PD.No.2405 of 2018 respectively. Thereafter, his mother executed the Will dated 20.09.2001 in favour of the first petitioner herein. Thereafter, the first petitioner executed the Will in favour of the second petitioner dated 23.11.2010. While being so, the respondent herein filed the impugned suit for partition claiming her 1/12th share in the suit property.
11. On a perusal of the plaint, the respondent herein categorically averred that in respect of her share over the suit property was already released by the registered release deed dated 15.03.2001. When that being so, if at tall aggrieved by the same, the respondent should have challenged it in time. That apart, the respondent categorically averred that her mother Kanagambujam had not executed the alleged Will in favour of the first petitioner in respect of her 1/3rd share. When that being so, the respondent should have challenged the alleged Will executed in favour of the first petitioner. Without challenging the release deed and also the Will, the petitioner cannot claim any partition over the suit property. That apart, the said release deed and the Will were executed in the year 2001. If at all any grievance over the release deed and the Will executed by his mother, the respondent herein ought to have challenged the same within a period of 8/11 https://www.mhc.tn.gov.in/judis/ CRP.PD.No.2405 of 2018 three years from the date of the execution. Therefore, the respondent herein lost her right in all aspects and she cannot claim any partition over the suit property. Without considering the above facts, the Court below mechanically dismissed the petition for rejection of plaint.
12. In view of the above discussion, this Civil Revision Petition is allowed and the order passed in I.A.No.854 of 2017 in O.S.No.186 of 2012 is hereby set aside. The plaint in O.S.No.186 of 2012 is hereby rejected. Consequently, the connected Miscellaneous Petition is closed. No costs.
06.07.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
kv
To
1. The Additional Sub Judge, Puducherry.
2. The Section Officer,
V.R.Section, High Court of Madras.
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CRP.PD.No.2405 of 2018
G.K.ILANTHIRAIYAN,J.
Kv
C.R.P.PD.No.2405 of 2018
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CRP.PD.No.2405 of 2018
06.07.2021
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