Madras High Court
B.Kamesh @ Kameswar vs Mrs.B.Santhanalakshmi on 6 April, 2016
A.S.No.576 of 2016 and 15 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On : 26.02.2024
Delivered On: 05.06.2024
CORAM
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
A.S.No.576 of 2016 and 15 of 2017
In A.S.No.576 of 2016
1.B.Kamesh @ Kameswar
2.B.Gokulnathan ...Appellants
Vs.
1.Mrs.B.Santhanalakshmi
2.B.Vijayakrishnan
3.Mrs.B.Durgambika
...Respondents
PRAYER in A.S.No.576 of 2016:- First Appeal filed under Section 96 of the
Civil Procedure Code, to set aside the judgment and decree dated 06.04.2016
made in O.S.No.12844 of 2010 on the file of the learned XVII Additional Judge,
City Civil Court, Chennai .
For Appellants : Mr.S.Kamadevan
For Respondents 1 &2 : No appearance
For Respondents 3 : Mr..T.Paranthaman
In A.S.No.15 of 2017
1.Mrs.B.Durgambika ...Appellant
Vs.
1.Mrs.B.Santhanalakshmi
2.B.Kamesh @ Kameswar
3.B.Gokulnathan
https://www.mhc.tn.gov.in/judis
1/16
A.S.No.576 of 2016 and 15 of 2017
4.B.Vijayakrishnan ...Respondents
PRAYER in A.S.No.15 of 2017:- First Appeal filed under Order XLI Rule 1 r/w
Section 96 of the Civil Procedure Code, to set aside the judgment and decree
dated 06.04.2016 made in O.S.No.12844 of 2010 on the file of the learned XVII
Additional Judge, City Civil Court, Chennai and pass a decree granting 1/5th
share to the appellant.
For Appellant : Mr..T.Paranthaman
For Respondents 1 and 4 : No appearance
For Respondents 2 & 3 : Mr.S.Kamadevan
COMMON JUDGEMENT
For the sake of convenience, the parties are referred as per their ranking in
O.S.No. 12844 of 2010.
2(a). The 1st and 2nd defendants in O.S.No.12844 of 2010 filed the appeal
suit in A.S.No.576 of 2016. The 4th defendant in O.S.No.12844 of 2010 filed the
appeal suit in A.S.No.15 of 2017. The plaintiff, who filed the original suit in
O.S.No.12844 of 2010 for partition claiming 1/5th share in the suit property is
the first respondent in both appeals.
2(b). The suit property is situated in Door No.4, previous No.5, old door
No.39 and the new door No.20, Rosary Church Road, 1 st lane, Santhome,
Mylapore, Chennai, ad-measuring 1230 sq.ft with building.
https://www.mhc.tn.gov.in/judis
2/16
A.S.No.576 of 2016 and 15 of 2017
3. The plaint proceeded on the basis that the suit property was originally
owned by one Late.Sankaran Chettiyar having purchased it under Ex.A1/Sale
deed, dated 03.10.1973. He had only son by name, Boopathy Chettiyar. The said
Boopathy Chettiyar married one Kamakshiammal only after the death of his first
wife namely Saroja. For better clarification, the family genealogy is extracted
hereunder:-
Genealogy
L.Sankaran Chettiyar
(died on 06.05.1984)
Boopathy Chettiyar
(died on 26.02.1986)
Saroja
(1st Wife (died)) Kamakshi Ammal
nd
(2 Wife (died on 25.07.2001)
B.Kamesh @ Kameshwar (D1) Gokulakrishnan (D2)
Santhanalakshmi (P)
Durgambika (D4)
Vijayakrishnan (D3)
https://www.mhc.tn.gov.in/judis
3/16
A.S.No.576 of 2016 and 15 of 2017
4. In the suit filed by the plaintiff for partition, the third defendant was set
ex-parte.
5. The 1st and 2nd defendants have filed a written statement denying the
rights of partition and the 4th defendant filed a written statement stating that she
is the sister of the plaintiff and also paid separate Court fee.
6(a). Admittedly, the factual matrix of the case is that the said Bhoopathy
Chettiyar was the only son of Late Sankaran Chettiar. The Late Bhoopathy
Chettiyar married one Kamakshi Ammal, only after the death of his first wife
Saroja, through her, the plaintiff and defendants 2 to 4 were born. The 1 st
defendant is the only son born out of his first wife.
6(b). The plaintiff originally filed a suit for partition against the defendants
before this Court on 06.09.2008 and the same was taken on file as C.S.No.859
of 2008. Later on, due to pecuniary jurisdiction, the said suit was transferred to
the Trial Court and re-numbered as O.S.No.12844 of 2010, on 01.11.2010.
https://www.mhc.tn.gov.in/judis
4/16
A.S.No.576 of 2016 and 15 of 2017
6(c).The plaintiff is the sister of the defendants and legal heir of the
deceased Boopathy Chettiyar. The said Sankaran Chettiyar purchased the suit
property through registered sale deed dated 03.10.1973 which was marked as
Ex.A1. The admitted fact is that the said Sankaran Chettiyar died intestate
leaving behind his only son Late. Boopathy Chettiyar, father of the plaintiff and
the defendants. The 3rd defendant remained ex-parte and the 1st and 2nd
defendants had resisted the claim of the plaintiff.
6(d).The 4th defendant, being the sister of the plaintiff, sailed along with
the plaintiff and paid separate Court fee towards her claim for 1/5th share in the
suit property, wherein, the 4th defendant claimed that 1st defendant is the only son
of Late.Boopathy Chettiyar through his 1st wife. Thereafter, the said
Late.Boopathy Chettiyar married one Kamatchi Ammal as his 2nd wife and
through her, the plaintiff and the defendants 2 to 4 were born. The original
owner of the suit property, as per Ex.A1/Sale deed, dated 03.10.197, is Sankaran
Chettiyar who died in the year 1984. Thereafter, his only son Boopathy
Chettiyar, father of the plaintiff and the defendants, died on 26.02.1986.
Therefore, the partition in respect of the ancestral property among the male
members have already opened and as such, the plaintiff cannot now accelerate
https://www.mhc.tn.gov.in/judis
5/16
A.S.No.576 of 2016 and 15 of 2017
her claim of partition in respect of the ancestral co-parcenary property.
7. The 1st defendant filed a written statement and additional written
statement interalia contending that the claim for partition made by the plaintiff
was an ancestral property and the parties were governed by the Hindu
Succession Act, 1955 and hence, the claim for partition by a female cannot be
maintained and on this ground alone the suit was liable to be dismissed. The
amendment to the Hindu Succession Act, which was introduced by the
Amending Act, 2005 cannot have retrospective effect. That being the position,
the claim made by the plaintiff seeking partition was untenable and the suit was
not maintainable. It was averred that as far as the execution of release deed dated
12.06.2008 is concerned, the plaintiff executed the same on her own volition. It
was also averred that the suit for partial partition is not maintainable and liable
to be dismissed as the plaintiff failed to include all the properties. Hence, the
suit was liable to be dismissed.
8. The Written statement was filed raising the plea that the suit is bad for
partial partition.
9. It is submitted by the respective counsels that another application
https://www.mhc.tn.gov.in/judis
6/16
A.S.No.576 of 2016 and 15 of 2017
has been filed in I.A.No.146 of 2015 to withdraw the suit with liberty to file
fresh comprehensive suit and the same was dismissed on 26.02.2015.
10. The 4th defendant filed a separate written statement and also paid an
additional Court fee. The Trial Court formulated the following issues :-
“ 1. Whether the plaintiff is entitled to 1/5 th share
in the suit property?
2. Whether the release deed dated 12.06.2008
executed by the plaintiff and the defendants 3 and 4 was
obtained by the 2nd defendant by exercising force and
coercion without the free and genuine consent of the
plaintiff and the defendants 3 and 4?
3. Whether the second defendant is liable to
render accounts for the income from the joint family
property from the year 2001 onwards?
4. Whether the plaintiff is entitled for the
surrender of her 1/5th share from the second defendant?
5. To what relief the plaintiff is entitled for ?
Additional Issues framed on 01.10.2015:-
1) Whether the suit is bad and not maintainable on
the ground of partial partition?
2) Whether the D4 is entitled for partition and
separate possession of 1/5th share in the suit property?”
11. Before the Trial Court, the plaintiff's husband was examined as P.W.1
https://www.mhc.tn.gov.in/judis
7/16
A.S.No.576 of 2016 and 15 of 2017
and marked the documents as Ex.A1 to Ex.A10. On the side of the defendants,
D.W.1 & D.W.2 were examined and the documents were marked as Exs.B1 to
B7.
12. The Trial Court, based on the oral and documentary evidence available
on record, came to the conclusion that the plaintiff and the 4th defendant have the
right of partition over the suit property and entitled to get 1/20th share each in the
1/4th share of their father late Bhoopathy Chettiar. Aggrieved by the said findings
of the Trial Court, the 1st and 2nd defendants preferred an appeal in A.S.No.576
of 2016 and the 4th defendant preferred an appeal in A.S.No.15 of 2017.
13. The learned counsel appearing for the appellants in A.S.No.576 of
2016 would contend that there is a specific plea on partial partition and the Trial
Court ought to have dismissed the suit.
14. The learned counsel appearing for the appellant in A.S.No.15 of
2017 would contend that the findings rendered by the Trial Court with regard to
the suit property being treated as an ancestral property is not correct and that as
the facts and circumstances of the case and as per Section 8 of the Hindu
https://www.mhc.tn.gov.in/judis
8/16
A.S.No.576 of 2016 and 15 of 2017
Succession Act, 1956, the only legal heir of the suit property is late Boopathy
Chettiyar, S/o. Late. Sankaran Chettiyar. After the death of late Sankaran
Chettiyar, the said Boopathy Chettiyar inherited the suit property and thus, it
was not a purchased property. Therefore, the plaintiff and the defendants are
entitled to 1/5th share and also contended that in respect of the another finding
rendered by the Trial Court in paragraph No.11 that the suit property was an
ancestral property is incorrect and with regard to the same, he relied upon the
judgment of this Court, in the case of Alli Sekar alias Sekar Vs. Ramu and 5
Ors., in S.A.No.60 of 2014, dated 29.11.2019.
15. After hearing the rival submissions on either side and after perusing
the documents available on record, the following points arise for consideration in
this First Appeal.
1. Whether the suit is bad and not maintainable on
the ground of partial partition?
2. Whether the release deed dated 12.06.2008
executed by the plaintiff and defendants 3 and 4 in favour
of the 2nd defendant was by force and cohesion without
free consent and whether binding upon the plaintiff?
3. Whether the plaintiff is entitled to 1/5th share in
the suit property as claimed ?
https://www.mhc.tn.gov.in/judis
9/16
A.S.No.576 of 2016 and 15 of 2017
4. Whether the 4th defendant is also entitled for
partition?
16. On perusal of the typed set of papers, this Court finds that both the
plaintiff and defendants' family also owns another fifty one more properties
situated in and around Chennai city. The said properties were the absolute
properties of late Sankaran Chettiyar, the grandfather of the plaintiff and
defendants. It was averred by the plaintiff that her father late Boopathy Chettiar
became the absolute owner of the said properties vide judgment and decree
passed in O.S.No.669 of 1992 and subsequent E.P.No.9 of 1967 on the file of
District Munsif Court, Poonamallee.
17. On perusal of the lower Court records, it reveals that the plaintiff
wanted to rectify the defect pointed out by the appellants and therefore, filed
I.A.No.13132 of 2011 seeking amendment of the prayer to include all the
properties but the same was dismissed and no appeal or revision has been
preferred against the said order. Further, this Court also noticed that another
application in I.A.No.146 of 2015 was filed seeking permission of the Court to
withdraw the suit with liberty to file fresh suit was also dismissed by order dated
26.02.2015 and no appeal appears to have been filed. The Trial Court has
https://www.mhc.tn.gov.in/judis
10/16
A.S.No.576 of 2016 and 15 of 2017
decreed the suit and passed preliminary decree by holding that the suit property
is an ancestral property. The Trial Court negatived the case of the plaintiff and on
the factual position available on record has held that father of the plaintiff and
defendants died on 26.02.1986. The marriage of the plaintiff took place in the
year 1993. The marriage of the 4th defendant took place in the year 2006. The
father of the plaintiff and the defendants, namely Boopathy Chettiar died on
26.02.1986 prior to 25.03.1989, the date on which the Tamil Nadu Amendment
Act came into force. The plaintiff is not entitled for any relief under the Tamil
Nadu Amendment Act since the two pre-conditions stipulated in the Tamil Nadu
Amendment Act that on the date, the plaintiff should not have been married and
the father should be alive. However, proceeded to give the relief under the
Central Act treating the property as an ancestral property. At this juncture, it
remains to be stated that in the written statement, it is specifically stated that
release deed dated 12.06.2008 marked as Ex.A3 is true and valid.
18. On perusal of the prayer in the suit, this Court finds that there is no
relief sought for by the plaintiff challenging Ex.A3, release deed as stated supra.
The application appears to have been filed before the Trial Court for amendment
of the prayer and it also appears to have been dismissed. Apart from the above
https://www.mhc.tn.gov.in/judis
11/16
A.S.No.576 of 2016 and 15 of 2017
pleadings, there are 50 other properties available in the family but they are not
added as list of properties. On perusal of Ex.A7, Ex.A8 and Ex.A9, this Court
finds that so many properties appears to be the family properties and 1st
defendant has filed a suit for partition O.S.No.7728 of 1998. In the said suit,
under Ex.A8, written statement was filed by the very same plaintiff and
defendants 2 to 4 stating that partition had already taken place.
19(a). A close perusal of Ex.A8, dated 15.07.2003, the written statement
filed by the plaintiff and the defendants 2 to 4 in O.S.No.7728 of 1998, it is
made clear that during the lifetime of late Bhoopathi Chettiar, an oral partition
appears to be held between plaintiff and defendants 1 to 5, in which, it was
unanimously agreed that suit Schedule "A" (house property) were alloted to
defendants 1 to 5 and the landed properties situated at Adambakkam viz.,
Schedule "B" properties were alloted to the plaintiff. In view of the above said
oral partition held during the life time of Bhoopathi Chettiyar, the plaintiff
himself has sold various items of lands situated in and around Alandur, which
proves that the said oral partition assumes significance.
19(b). The suit in O.S.No.7728 of 1998 is filed for partition in respect of
https://www.mhc.tn.gov.in/judis
12/16
A.S.No.576 of 2016 and 15 of 2017
a property in Door No.39, Rosary Church Road, 1st lane, Santhome, Mylapore,
Chennai and the said suit appears to have been dismissed for default as would be
seen from Ex.A9. Now, the 1st defendant has taken a different stand in the
present suit. Be that as it may, even in the written statement under Ex.A8 in
O.S.No.7728 of 1998, list of various properties has also been mentioned as
family property. However, for the reasons best known, the plaintiff had picked
and chose one property and filed the present suit for partition and hence, this
Court finds that on the above factual background, the suit is clearly bad for
partial partition.
20. This Court, in the case of Govindan and others Vs Revathi and
Others reported in 2019 5 LW 289 dated 25.10.2019, held that it is clear that a
property that is inherited by a Hindu on the death of his father after 1956, will
not partake the character of coparcenary property qua his children. He will be
the absolute owner of the property and have absolute power of alienation over
the property and hence, this Court finds that in the absence of any prayer to
challenge Ex.A3, release deed dated 12.06.2008, the interlocutory application
filed by the party seeking amendment of the prayer has been dismissed and in
the absence of further appeal or revision, the same has become final. This Court
https://www.mhc.tn.gov.in/judis
13/16
A.S.No.576 of 2016 and 15 of 2017
also noticed the inconsistency in the stand of the plaintiff herein, who is the
defendant in the earlier proceedings, as to the nature and character of the suit
property being an ancestral property. The very same party has admitted in the
written statement that already a partition has been effected assumes
significance.
21. The Hon'ble Supreme Court in the case of Thimmappa Rai Vs
Ramanna Rai and others reported in 2007 14 SCC 63, held that under Section
58 of the Evidence Act, an admission made by a party to the suit in an earlier
proceedings and its effect that the said admission is admissible against the party
who made the admission. Furthermore, this Court in S.A.No.60 of 2019 dated
29.11.2019 has held as follows:-
“In the case of Gandhi Vs Saminatha Gounder and
another reported in 2006 (1) CTC 267, this Court had held
that the suit for partition must include the whole estate
which is available. The plaintiff cannot be allowed to omit
properties at his discretion and seek partition of one
portion of the properties. While doing so, this Court had
relied upon the judgment of the Hon'ble Supreme Court in
Kenchegowda (since deceased) by legal representatives Vs
https://www.mhc.tn.gov.in/judis
14/16
A.S.No.576 of 2016 and 15 of 2017
Sri Siddegowda @ Motegowda reported in JT 1994 (4) SC
125. In view of the aforesaid pronouncement of this Court,
I am constrained to answer the second question of law in
favour of the appellant”.
22. In fine, the suit in O.S.No.189 of 2005 is held to be bad for partial
partition and hence, I have no hesitation to hold that the present appeal suit is
bad for partial partition and the same cannot be allowed on the basis of the
admitted position by the plaintiff and defendants in the earlier round of litigation
and accordingly, both the first appeals are allowed and the judgment and decree
dated 06.04.2016 passed in O.S.No.12844 of 2010 on the file of the learned
XVII Additional Judge, City Civil Court, Chennai are hereby set aside. No costs.
05.06.2024
Index : Yes/No
Internet : Yes/No
Neutral Citation Case : Yes/No
nr
To
The XVII Additional Judge, City Civil Court, Chennai
RMT.TEEKAA RAMAN, J.
https://www.mhc.tn.gov.in/judis 15/16 A.S.No.576 of 2016 and 15 of 2017 nr Pre-delivery order made in A.S.No.576 of 2016 and 15 of 2017 05.06.2024 https://www.mhc.tn.gov.in/judis 16/16