Madras High Court
Iswarya vs A.M.G.Murugesan (Died) on 17 December, 2024
Author: T.V. Thamilselvi
Bench: T.V. Thamilselvi
S.A.No.898 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.12.2024
CORAM:
THE HONOURABLE MRS. JUSTICE T.V. THAMILSELVI
S.A.No.898 of 2024
Iswarya ...Appellant/Appellant/Plaintiff
Vs.
A.M.G.Murugesan (died)
1.M.Mehandran ...Respondent/Respondent/Defendant
2.M.Ganagam
3.Vijayarani ...Respondents 2 and 3/Respondents 2 and 3
(Cause title accepted vide Order dated 10.09.2024 made in
C.M.P.No.19967/2024 in S.A.(SR).No.115517/2024)
Prayer: Second Appeal is filed under Section 100 of the Civil Procedure
Code, against the Judgment and Decree dated 21.06.2023 in A.S.No.25 of 2022
on the file of the learned Principal District Judge, Namakkal, partly confirming
the Judgment and Decree dated 08.12.2021 in O.S.No.83 of 2017 on the file of
the learned Subordinate Judge, Rasipuram.
For Appellant : Mr.S.Senthil
For Respondents : Mr.P.Mathivanan
for R1 and R2
Ms.Vijayarani,
Party -in- person
https://www.mhc.tn.gov.in/judis
1/13
S.A.No.898 of 2024
JUDGMENT
The above Second Appeal arises against the Judgment and Decree dated 21.06.2023 passed in A.S.No.25 of 2022 on the file of the learned Principal District Judge, Namakkal, partly confirming the Judgment and Decree dated 08.12.2021 passed in O.S.No.83 of 2017 on the file of the learned Subordinate Judge, Rasipuram.
2.The plaintiff in the suit O.S.No.83 of 2017 is the appellant before this Court. The parties are arrayed in the same ranking as in the suit.
3.The plaintiff has filed the suit for a Partition and separate possession of her 1/3rd share in the suit schedule properties. It is the case of the plaintiff that the plaintiff filed the suit for partition against her maternal grandfather and her maternal uncle. The plaintiff is the daughter of one Vijayarani, who is the daughter of the 1st defendant and the sister of the 2nd defendant. The suit properties are agricultural properties covered under Patta No.126 of Ellapalayam Village which stood jointly in the name of the plaintiff's mother Vijayarani and the defendants. The said Vijayarani executed a Settlement Deed https://www.mhc.tn.gov.in/judis 2/13 S.A.No.898 of 2024 dated 09.10.2015 in favour of her daughter, namely, Iswarya, the plaintif, for her 1/3rd share of the suit properties. The plaintiff and the defendants are in joint possession and enjoyment of the suit properties. Despite her request for amicable partition, the defendants had not come forward to partition the properties, hence, she instituted the suit.
4.The 1st defendant had filed a Written Statement inter alia contending that the suit properties is not the ancestral properties. It is the self acquired properties of the 1st defendant's father, Gurusamy Mudaliyar and his brothers and they were doing Textile business. From and out of that income, they jointly purchased the properties. Subsequently, Gurusamy Mudaliyar had bequeathed his properties in equal shares among the four sons, namely, 1 st defendant and his three brothers, by virtue of a Will dated 15.04.1974. The said Gurusamy Mudaliyar died in the year 1975. Thereafter, in the year 1995, an oral partition has been taken place between his four brothers. Pursuant to the same, the suit properties and another property in S.F.No.321/1 was allotted to the share of the 1st defendant. On 10.04.2002, the 1st defendant had obtained a nominal Release Deed from his brothers for Bank transaction. Therefore, the suit properties are the self acquired properties of the 1st defendant. https://www.mhc.tn.gov.in/judis 3/13 S.A.No.898 of 2024
5.Before the Trial Court, the mother of the plaintiff was examined as P.W.1 and Ex.A.1 to Ex.A.3 were marked on the side of the plaintiff. The 1st defendant was examined as DW1 and Ex.B.1 to Ex.B.23 have been marked on the side of the defendants.
6.The Trial Court on analysing of the oral and documentary evidence dismissed the suit with compensatory costs of Rs.10,00,000/- to be paid by the plaintiff to the defendants under Section 35-A(2) of the Code of Civil Procedure within five months from the date of Judgment.
7.Aggrieved over the said Judgment and Decree, the plaintiff preferred an appeal before the First Appellate Court in A.S.No.25 of 2022 and the First Appellate Court partly allowed the appeal by setting aside the levy of compensatory cost against the plaintiff and confirmed the findings of the Trial Court. Challenging the concurrent findings of the Courts below, the plaintiff filed this Second Appeal.
8.During the pendency of the proceedings, the 1st respondent died leaving behind his wife Ganagam, his son Mehandran and his daughter Vijayarani as his legal representatives. Since the dispute is regarding the partition of the https://www.mhc.tn.gov.in/judis 4/13 S.A.No.898 of 2024 agricultural lands, both the parties were directed to appear before this Court. The dispute is between the sister and brother. The appellant is claiming partition against the 1st defendant, who is the maternal grandfather. The fact reveals that the mother of the plaintiff, namely, Vijayarani married one Sivasakthivel, who is an Advocate by profession and at the instigation of the said Sivasakthivel, the suit was filed. The plaintiff submitted that the suit property is the ancestral property in which her mother Vijayarani is having 1/3 share in the suit property and the same was given by way of a Settlement Deed dated 09.10.2015 to the plaintiff. Based on Ex.A.1 - Settlement Deed dated 09.10.2025, the plaintiff claimed partition in the suit property.
9.The learned counsel for the appellant submitted that both the Courts below have failed to take note of the fact that Patta with regard to the suit properties stands in the name of Vijayarani, the mother of the appellant under Ex.A.2 and hence, the suit property was in possession of the appellant's mother, when the Gift Deed dated 09.10.2015 was executed. He further submitted that there was a patta in the name of the plaintiff's mother and the 1 st defendant which shows that the property is the ancestral property in nature, but the Courts below have erroneously concluded that the pre-existing right of the mother of the plaintiff over the suit property is not proved and hence, the impugned https://www.mhc.tn.gov.in/judis 5/13 S.A.No.898 of 2024 Settlement Deed dated 09.10.2015 is favour of the plaintiff in consequent thereon is invalid.
10.Per contra, the learned counsel for the respondents submitted that the suit property is the self acquired property of the 1st defendant's father and it is not the ancestral property. Therefore, the plaintiff's mother, namely, Vijayarani, has no right to execute the Settlement Deed. Based on the said Settlement Deed, the plaintiff has no right to claim any share in the suit properties. Accordingly, the Trial Court dismissed the suit. The alleged Settlement Deed executed by the plaintiff's mother dated 09.10.2015 is invalid, since she has no right to execute the said document.
11.Heard the learned counsel appearing on either side and perused the material available on record.
12.On a perusal of the records, it is seen that the mother of the plaintiff, namely, Vijayarani had executed the impugned Ex.A.1 - Settlement Deed dated 09.10.2015 in respect of her alleged 1/3rd share in favour of her daughter, the plaintiff, by claiming the properties covered as ancestral and on the right under Patta No.126. Te pre-existing right of the mother of the plaintiff is to be https://www.mhc.tn.gov.in/judis 6/13 S.A.No.898 of 2024 established and proved first in order to maintain the validity of Ex.A.1 – Settlement Deed and the suit claim for partition. Further, the recitals found in Ex.A.1 - Settlement Deed and the case of the plaintiff, the Sale Deeds Ex.B.8 to Ex.B10 would disclose that the suit property along with other properties were purchased by Gurusamy Mudaliyar, who is the father of the 1st defendant and the paternal grandfather of Vijayarani. The mother of the plaintiff during the examination admitted that the suit properties are the self acquired property of her paternal grandfather. The said Gurusamy Mudaliyar died on 05.09.1975. The existence of the aforesaid Sale Deeds in favour of the said Gurusamy Mudaliyar in Ex.B.7 to Ex.B.10 is not disclosed in the Plaint also. The execution of the impugned Sale Deed is based upon the alleged Ex.B.6 - joint patta No.126, which shown to be in the name of Vijayarani, 1 st defendant and others. Further, it is seen that the name of the 2 nd defendant who being the son of the 1st defendant do not find place in the alleged patta to show joint possession in the alleged ancestral properties.
13.When the matter was taken up for hearing, the learned counsel for the respondents submitted that there is no possibility to give any share to the plaintiff's mother, since they harassed all these years by filing cases. But at the time, the plaintiff's mother married one Sivasakthivel without consent of their https://www.mhc.tn.gov.in/judis 7/13 S.A.No.898 of 2024 parents and therefore, during her marriage, she was not given any jewels. The entire fact reveals that it is the self acquired property of the 1st defendant and his father and it is not the ancestral property. Therefore, the plaintiff's mother has no right to execute the Settlement Deed in favour of the plaintiff. Moreover, the 1st defendant's son took care of the 1st defendant till his lifetime. Therefore, the plaintiff has no right and title over the suit properties.
14.The learned counsel for the respondents further submitted that the mother of the plaintiff got married to one Sivasakthivel, Advocate by profession in the year 2005 and in order to harass the defendants, at the instigation of the said Sivasakthivel, the present suit has been filed. During the pendency of the proceedings, at the instigation of the plaintiff's father, another suit in O.S.No.6 of 2021 on the file of the learned Subordinate Judge, Rasipuram was filed in respect of the house property, where the 2 nd defendant and his mother is residing and it shows the conduct of the plaintiff's father. Taking advantage of his profession, he is harassing the defendants in all sorts of ways. This Court reserves right to take action against the said Sivasakthivel, Advocate by profession of Rasipuram Bar Council. If any complaint is made against him in future, this Court would take severe action against the said Sivasakthivel, for the dereliction of duty using his profession. https://www.mhc.tn.gov.in/judis 8/13 S.A.No.898 of 2024
15.The Courts below has rightly observed this, and there is no need for interference by this Court. In these circumstances, I find no ground much less any substantial question of law to interfere with the concurrent findings of the Courts below.
16.As suggested by this Court, now, the 2nd respondent, who is the legal heir of the 1st respondent agreed to give 30 cents of lands in Item No.1 of the suit property in S.No.33/2C to the appellant. To that effect, both the parties filed Compromise Memo and Plan. As per the Plan, the marked portion in red colour was given to the appellant. Both the parties agreed not to file any case against each other in future. Admittedly, the appellant is claiming right in the property of her grandfather/A.M.G.Murugesan (died) based upon the Settlement Deed executed by her mother/3rd respondent herein. Now, after the death of her grandfather, the matter is settled as suggested by this Court. Therefore, in its entirety, 30 cents of lands in Item No.1 of the suit property in S.No.33/2C was given to the appellant, who is the granddaughter of A.M.G.Murugesan. Further, the appellant's mother Vijayarani/3rd respondent herein filed the suit in O.S.No.6 of 2021 on the file of the learned Subordinate Judge, Rasipuram, claiming half share in the house property. As directed by https://www.mhc.tn.gov.in/judis 9/13 S.A.No.898 of 2024 this Court, the said 3rd respondent Vijayarani appeared before this Court along with her daughter Iswarya, the appellant herein, stating that her love marriage was not accepted by her parents and she has not received any Sreethana nor property after marriage. Hence, she approached the Court. Now, as per the Compromise Memo, she is ready not to press the suit filed by her in O.S.No.6 of 2021.
17.The said Compromise Memo filed by the parties is recorded. As per the Compromise Memo, in its entirety, 30 cents of lands was given to the appellant and the 3rd respondent/Vijayarani is directed to withdraw the suit filed by her in O.S.No.6 of 2021 on the file of the learned Subordinate Judge, Rasipuram, on the next date of hearing. Subsequently, both the parties are directed to fix the survey stones in the property in order to avoid further complications in future with the help of the Surveyor within a period of three months. As per the Compromise Memo, 30 cents of lands in S.No.33/2C absolutely is belonged to the appellant. As per the Will dated 13.09.2023 executed by the father of the 1st and 3rd respondents herein, the 1st respondent herein is the absolute owner of the entire suit properties except the said 30 cents given to the appellant/plaintiff. Further, considering the fact that there was no Sreethana or property was given to the mother of the appellant, the 3rd https://www.mhc.tn.gov.in/judis 10/13 S.A.No.898 of 2024 respondent herein, this Court suggested the 1st respondent to give gold jewels to his sister's daughter/plaintiff and he also agreed to give 10 sovereigns of gold jewels to the plaintiff at the time of her marriage. Now, as per the Will executed by his father, the 1st respondent herein is entitled to transfer the records in his favour in the Revenue Department. Further, Mr.Sivasakthivel, who is the husband of Vijayarani has no locus standi to raise any objection in respect of the suit properties, since because as per the Will, the suit properties are belonged to M.Mehandran, 1st respondent herein.
Accordingly, this Second Appeal is disposed of. The terms of Compromise shall form part of the Decree. There shall be no order as to Costs.
17.12.2024 Speaking / Non Speaking order Neutral Citation : Yes/No Index :Yes/No mps https://www.mhc.tn.gov.in/judis 11/13 S.A.No.898 of 2024 To
1.The Principal District Judge, Namakkal.
2.The Subordinate Judge, Rasipuram.
3.The Section Officer, VR Section, Madras High Court.
https://www.mhc.tn.gov.in/judis 12/13 S.A.No.898 of 2024 T.V.THAMAILSELVI, J.
mps S.A.No.898 of 2024 17.12.2024 https://www.mhc.tn.gov.in/judis 13/13