Madras High Court
Ramayee vs Ramasamy (Died) on 15 April, 2025
S.A.(MD)No.1 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15.04.2025
CORAM:
THE HON'BLE MR JUSTICE K.K. RAMAKRISHNAN
S.A.(MD)No.1 of 2018
and
C.M.P(MD)Nos.94 of 2018 and 5742 of 2024
1. Ramayee
2. Lakshmi ... Appellants
Vs.
Ramasamy (died)
1. Muthusamy
2. Marayee Ammal
3.Valarmathi
4. Raj Kumar
5. Karthikeyan
(R3 to R5 are brought on record as Lrs of the deceased
1st respondent vide order dated 03.01.2024 made in
C.M.P(MD)No.7125 of 2023 in SA(MD)No.1 of 2018
by PVMJ) ... Respondents
Prayer: The Second Appeal has been filed under Section 100 of C.P.C,
to set aside the Judgment and Decree dated 02.12.2015 made in A.S.No.10
of 2015 on the file of the Principal District Court, Karur reversing the
judgment and decree dated 06.02.2015 made in O.S.No.316 of 2011 on
the file of the Additional Subordinate Court, Karur.
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S.A.(MD)No.1 of 2018
For Petitioner : Mr.G.Prabhu Rajadurai
for Mr.R.Rajaselvan
For R2 to R5 : Mr.M.Saravanan
ORDER
The plaintiffs in O.S.No.316 of 2011 on the file of the Additional Subordinate Court, Karur have filed this appeal challenging the judgment and decree passed by the Principal District Court, Karur in A.S.No.10 of 2015 dated 02.12.2015, reversing the judgment and decree passed by the Additional Subordinate Court, Karur in O.S.No.316 of 2011 dated 06.02.2015.
2. For the sake of convenience and brevity, the parties herein after will be referred to as per their status/ranking before the trial Court.
3. The brief averments made in the plaint are as follows:-
3.1. Originally the suit schedule property belonged to one Muthusamy gounder. The said Muthusamy gounder married one Kuttiyammal. During the wedlock two children were born namely Lakshmi and Tholappan. After the demise of Kuttiyammal, the said Muthusamy gounder married one Perumayee and through her the said 2/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/11/2025 06:38:21 pm ) S.A.(MD)No.1 of 2018 Muthusamy gounder had three children namely Palaniyappan, Chinnappan and Ramasamy.
3.2. After the demise of the said Muthusamy gounder, his sons namely Tholappan, Palaniappan, Chinnappan and Ramasamy entered into a partition vide registered partition deed dated 01.09.1938. Since Chinnappan and Palaniappan were not married they executed a settlement deed in favour of the 1st defendant namely Ramasamy. The said Tholappan had executed a sale deed with respect to 1.68 acre in S.F.No.618 of Manmangalam Village in favour of one Kalianna gounder and the said Kalianna gounder in turn sold the same to the 1 st defendant. The plaintiffs contention is that the 1st defendant has purchased the said property from Kalianna Gounder from the joint family income and not from his own savings and the plaintiffs and the defendants jointly enjoyed suit scheduled properties and other properties. In the year 1994, vide sale deed dated 09.05.1994 they sold some of the properties. The defendants had given lawful share of profit in the suit scheduled property to the plaintiffs till December 2009 and thereafter, they refused and the plaintiffs demanded for partition and the attempt of the defendants to create 3/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/11/2025 06:38:21 pm ) S.A.(MD)No.1 of 2018 encumbrance on 03.10.2011 was thwarted and the present suit was filed for partition of ¼ share to each plaintiff and for permanent injunction restraining the defendants from alienating the suit scheduled properties.
4. The brief averments of the written statement filed by the defendant are as follows:-
4.1. The first defendant filed written statement for himself and on behalf of the second appellant admitting the relationship. The first plaintiff got married in the year 1978 and she was living with her husband. Similarly, the second defendant got married in year 1981 and was living with her husband. At the time of the marriage, adequate Sridhana has been given and also one of the property was purchased in the name of the second plaintiff. The bullock cart along with bullock was also given to the first plaintiff. They admitted the settlement deed dated 22.03.1956 and denied the purchase of the property from the Kalianna Gounder on 12.06.1974 with the income of the ancestral property and he specifically stated that the said Tholappan had executed a conditional sale deed with respect to 1.68 acre in S.F.No.618 of Manmangalam Village in favour of one Kalianna gounder. Since the said Tholappan failed to redeem the 4/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/11/2025 06:38:21 pm ) S.A.(MD)No.1 of 2018 property as per the condition, the 1st defendant has purchased the said property. The first defendant as per the purchase and as per the settlement is entitled to ¾ share and he was in possession of the said ¾ part of the property and remaining ¼ part of property is the ancestral property. They admitted the alienation jointly made in the year 1994 and he also stated that he executed the settlement deed on 14.07.2011 in favour of the second defendant. In view of the marriage of the plaintiff before the Tamilnadu Act, 1 of 90, they are not entitled to any partition.
5. Based on the above said pleading, the trial Court has framed the following issues:-
1. Whether the suit properties are ancestral joint family properties as contended by the plaintiffs?
2. Whether the 1st defendant is the absolute owner of item 1 and 2 of the suit properties as per the settlement deed dated 23.03.1956 and sale deed, dated 12.06.1974?
3. Whether the plaintiffs are entitled to get a preliminary decree for partition as prayed for?
4. To what relief the plaintiffs are entitled?5/18
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6. Before the trial Court on the side of the plaintiffs, the 1 st plaintiff examined herself as P.W.1 and marked Exs.A1 to A21. On the side of the defendants, the 2nd defendant and 4th defendant examined themselves as D.W.1 & D.W.4 and other witnesses were examined as D.W.2 & D.W.3 and marked Ex.B1 to Ex.B11. Apart from that, Ex.X1 was also marked through D.W.4.
7. Now the plaintiffs as a settlee, legal heirs and the coparcener of the Muthusamy Gounder have filed this suit claiming the 1/4th share each in the suit schedule property and seeking permanent injunction restraining the defendants namely the father and brother from alienating the suit schedule property. In the pleadings, they have referred to the settlement deed and also their rights over the properties relating to the 1/5th share of the ancestral property 2/4th as a settlee. They make a claim on the coparcener as well as the settlee. The defendants filed the written statement admitting the execution of settlement deed and also suit.
8. In paragraph 7, they admitted that they have rights only relating to the 1/4th share of the suit schedule property and no rights over the 6/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/11/2025 06:38:21 pm ) S.A.(MD)No.1 of 2018 remaining property. Further they stated that as per the Act 1 of 1990 , the plaintiffs got married much earlier to the commencement of the Act and hence they have not entered into partition. The learned trial Judge on the basis of the pleadings framed the necessary issues and partly decreed the suit by a judgment and decree dated 06.02.2015. The trial Court granted decree only 1/4th share in respect of 1.68 acres of land and dismissed the share in the remaining extent of the land. Thereafter, the plaintiffs filed an appeal in A.S.No.10 of 2015 before the Principal District Court, Karur and the same was dismissed vide judgment and decree dated 02.12.2015. Aggrieved over the same, the present second appeal is filed.
9. The second appeal is admitted on the following substantial questions of law:-
(1) Whether the judgment and decree of the appellate court in reversing the portion of the judgment and preliminary decree of the trial court with respect of 1/4th share in 1 item of suit property in the absence of a cross appeal by the defendants is correct and sustainable in law?
(2) Whether the courts below have erred in interpretation of Ex.A2 settlement deed and erred in holding that the property settled thereunder is the absolute property of the first defendant contrary 7/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/11/2025 06:38:21 pm ) S.A.(MD)No.1 of 2018 to the recitals of the deed?
(3) Whether the courts below have failed in appreciating that the plaintiffs have discharged their initial burden of proof in showing that property purchased under Ex-B4 sale deed was out of joint family nucleus?
(4) Whether the courts below have erred in not shifting the burden of proof on to the defendants to show that property under Ex-B4 was purchased out of self-acquired funds?
(5) Whether the courts below have erred in not drawing an adverse inference against the defendants for failure of 1st defendant to depose about the transaction Ex-B4?
(6) Whether the courts below have erred in holding that the 2nd item of suit property is the absolute property of the 1 defendant failing to appreciate that the same had been allotted under the Ex-B2 partition of 1938?
(7) Have not both the courts correct in not granting preliminary decree in favour of plaintiff as per Hindu Succession (Amendment) Act, 2005?
10. The learned counsel appearing on behalf of the appellants would submit that the appellants are entitled to share in the suit schedule property on the basis of the Hindu Succession (Amendment) Act, 2005 and also as a settlee. He submits that both the courts below failed to consider the said aspect and erroneously dismissed the suit relating to the remaining extent 8/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/11/2025 06:38:21 pm ) S.A.(MD)No.1 of 2018 of 5.04 acres (6.72-1.68).
11. The learned counsel for the appellants further submits that the learned Appellate Judge without any appeal on the side of the defendants dismissed the suit squarely by applying Section 8 of the above said Act. According to the learned counsel for the appellant, Section 8 is not applicable to the present case.
12. In view of the judgment of the Hon'ble Supreme Court in the case of Vineeta Sharma vs. Rakesh Sharma and others reported in (2020) 10 SCR 135, they are entitled to partition of property as a coparcener relating to 1/4th share and as a settlee relating to 2/4th share. The same was not properly considered by the learned Appellate Judge and hence, he seeks to set aside the judgment of the Appellate Court in entirety and modify the decree passed by the learned Trial Judge.
13. On the other hand, the learned counsel for the respondents would submit that they have not proved the settlement deed as per the Act. When they made a claim on the basis of the settlement deed, the duty of 9/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/11/2025 06:38:21 pm ) S.A.(MD)No.1 of 2018 the settlee is to prove the case in accordance with law. In this case, there is no proof and also no witness was examined to prove the settlement deed. Therefore, he seeks that this claim on the basis of settlee is not legally maintainable. The learned Appellate Judge correctly applied the judgment of the Full Bench of this Court and stated that son's son come under the category of coparcener and hence, he seeks to dismiss the appeal.
14. Vineeta Sharma vs. Rakesh Sharma and others case is not applicable to the present case in view of the peculiar circumstances of the case where the partition was effected on 07.09.1938 and settlement deed is not proved in accordance with law and also at the time of death of the Muthusamy gounder, the plaintiff was not born.
15. This Court considered the rival submissions made and perused the materials available on records.
16. Discussion on the Settlement Deed:
For better appreciation of the submission of both the parties, following genealogy is necessary:10/18
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/11/2025 06:38:21 pm ) S.A.(MD)No.1 of 2018 Muthu Gounder Perumayee Kuttiammal Palaniyappan Chinappan Ramasamy Tholappan Lakshmi 16.1. Muthu Gounder's ancestral property had been divided by 1st defendant and his brother Palaniappan, Chinnappan, Tholappan vide registered partition deed dated 07.09.1938. The said Palaniappan and Chinnappan were unmarried and they executed settlement deed in favour of the 1st defendant and his legal heirs namely plaintiffs under Ex.B3. The Respondents contended that the settlement deed is not proved in accordance with law. But they admitted the execution of the settlement deed and the same was acted upon. Therefore the case of the respondents that the settlement deed has not been proved in accordance with law cannot be sustained.
As per the settlement deed dated 22.03.1956, the 1st defendant and the plaintiffs would be treated as settlee as per the following material averments of the settlement deed:
11/18
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/11/2025 06:38:21 pm ) S.A.(MD)No.1 of 2018 “ePAk; cd;Dila thhpRfSk; vq;fs; ,Uth;fspila [Ptjpirf;F gpwF mbapy; fz;l nrhj;Jf;fis rkghfkhf rh;t Rje;jpu ghj;jpaj;Jld; Mz;L jhdjptpdNahf tpf;fpiuaq;fSf;F Nahf;fpakha; mile;J nfhs;s Ntz;baJ” Therefore from the above clear recital, appellants are also settlee and they are entitled to ¼ share in the extended of 1.68 acres.
16.2. The parties have no dispute over the relationship and also the Chinnappan and Palaniappan have share in the suit scheduled property and in view of the settlement deed, the 1st defendant and his legal heirs are entitled to ¼ share and hence the learned Trial Judge rightly granted ¼ share to each plaintiff in the shares of Palaniyappan and Chellappan namely to the extent of 1.68 acres.
17. In so far as 1/4th share derived by the 1st defendant in the partition vide dated 07.09.1938 effected between his brother is concerned, the Hon'ble Supreme Court in the case of Vineeta Sharma Vs. Rakesh Sharma and others clearly recognized the coparcener's rights upon the daughter as equal to the son, the plaintiffs are entitled to equal share in ¼ 12/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/11/2025 06:38:21 pm ) S.A.(MD)No.1 of 2018 share derived by the first defendant in the partition which was not legally partitioned by the registered document as on date of the commencement of 2005 Act. As per 2005 Act, from the date of birth the daughter's right to get the share in the property as coparcener exists and the same is well recognized by the Supreme Court by giving purposeful interpretation to the Amendment Act, 2005, in the Vineeta Sharma Vs. Rakesh Sharma and others and the same has been reiterated by the Hon'ble Supreme Court subsequent decision reported in 2023(9) SCC 641 with specific direction to apply the principle to the pending cases from the stage of trial to the execution stage. Therefore appellants are entitled to 1/16 share as coparcener.
18. Discussion on the dismissal of the suit in entirety by the first appellate court without filing any cross appeal to set aside the preliminary decree in O.S.No.316 of 2011 by the respondent:
The respondent did not file an appeal suit challenging the preliminary decree granted in O.S.No.316 of 2011 in favor of the appellant in respect of the said extent of property by filing any cross appeal under Order 41 Rule 22 of C.P.C. Or appeal under Section 96 of 13/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/11/2025 06:38:21 pm ) S.A.(MD)No.1 of 2018 C.P.C. The 1st Appellate Court has no jurisdiction to set aside the decree granted in favour of the appellant without any separate appeal or cross appeal. Therefore, the Judgment and preliminary decree granted in favour of the plaintiff in O.S.No.316 of 2011 is restored with modification of share and in this aspect, the Judgment and decree passed by the learned 1 st Appellate Judge is liable to be set aside by following the principles laid down by the Hon'ble Supreme Court in the case of Banarasi and Others vs. Ram Phal reported in (2003) 9 SCC 606 in the following paragraphs:
“10. The CPC amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross-objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference which has resulted we will shortly state. A respondent may defend himself without filing any cross-objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross-objection. The amendment inserted by the 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations:
(i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent.
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(ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent.
(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.
11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross-objection. The law remains so post-amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross- objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross-objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to 15/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/11/2025 06:38:21 pm ) S.A.(MD)No.1 of 2018 the respondent under the unamended CPC. In the pre- amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.
22. For the foregoing reasons we are of the opinion that the first appellate court ought not to have, while dismissing the appeals filed by the defendant-appellants before it, modified the decree in favour of the respondent before it in the absence of cross-appeal or cross-objection. The interference by the first appellate court has reduced the appellants to a situation worse than in what they would have been if they had not appealed. The High Court ought to have noticed this position of law and should have interfered to correct the error of law committed by the first appellate court.”
19. In view of the above factual and legal submissions, the appellate Court committed error in not considering the above principles and hence, this Court is inclined to set aside the same and allow this appeal in part. Accordingly, all the substantial question of Law framed are answered in favour of the appellant.
20. Accordingly, the Second appeal is partly allowed and the decree in O.S.No. 316 of 2011 is modified as follows: 16/18
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/11/2025 06:38:21 pm ) S.A.(MD)No.1 of 2018 20.1. The plaintiffs are entitled to 1/16 share as coparcener and 1/8 share as settlee in the first item of the suit schedule property.
20.2. The Second Item of Property is not ancestral property and the same is natham land in the occupation to the first defendant and the same is the property to the first defendant and hence, the plaintiff is not entitled to any share. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
15.04.2025 NCC :yes/No Index :yes/No Internet :yes/No rgm/sbn To
1. The Principal District Court, Karur.
2. The Additional Subordinate Court, Karur
3.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.17/18
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rgm/sbn S.A.(MD)No.1 of 2018 and C.M.P(MD)Nos.94 of 2018 and 5742 of 2024 15.04.2025 18/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/11/2025 06:38:21 pm )