This Second Appeal was filed challenging the dismissal of a partition suit. The Court held that the courts below correctly found the family settlement was acted upon while the compromise was not implemented. No substantial question of law arose to warrant interference.
Second Appeal dismissed. Connected Miscellaneous Petition closed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON :02.02.2017
PRONOUNCED ON :13.02.2017
CORAM
THE HON'BLE DR.JUSTICE G.JAYACHANDRAN
SECOND APPEAL No.671 of 2007 and C.M.P.No.8888 of 2016
1.Subramanian
2.Sambanda Moorthy
3.Ilangovan
4.Dakshinamoorthy
5.Chellappa
6.Arumugam .. Appellants
/versus/
1.Kalliaperumal
3.M.Panjanathan
4.Rajangam
5.N.Ramalingam .. Respondents
Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree of the Principal Subordinate Court, Mayiladuthurai, Nagapattinam District, dated 23.06.1998 passed in A.S.No.115 of 1997 dismissing the appeal, affirming the judgment and
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decree of the learned Principal District Munsif, Mayiladuthurai, Nagapattinam District in O.S.No.51 of 1997 dated 17.04.1997.
For Appellants :Ms.G.Sumitra For Respondents :Mr.A.Muthukar for R2 No appearance for R1 R3 to R5 -dispensed with vide memo.
J U D G M E N T
The second appeal is directed against the concurrent finding of the Courts below dismissing the suit filed for partition.
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jointly. Likewise, Chellamuthaian the first defendant is occupying the residential property and enjoying the same. Whileso, the income from the agricultural land is shared by three sons. The first defendant, who is in possession of the residential property, has improved it. But, he refused to partaway the shares of the plaintiffs, when the plaintiffs demanded their shares in the residential rental income, hence, they filed the suit claiming exclusive right over the property. Pending the suit, a compromise was entered between the parties and executed Ex.A1 wherein, the plaintiffs agreed to withdraw the suit and retain the possession of the house property exclusively by paying Rs.4000/- and also relinquishing his right over the agricultural land at Movoor village.
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terms found in the settlement deed. The house property is an exclusive possession and enjoyment of the defendants and the other two sons Saminathan and Gurunathan have let out the residential house as early as 1929 and 1941 respectively. They neither contributed for the purpose of Pooja as found in the settlement deed nor residing in the suit property or contributing for the maintenance and payment of tax for the suit property. Therefore, the plaintiffs cannot take any claim or share in the suit property through Saminathan and Gurunathan. On appeal, the first appellate Court also rejected the claim of the plaintiffs. Aggrieved by the concurrent findings of the Courts below, this Second Appeal is preferred.
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terms of settlement deed Ex.A4, but should have considered Ex.A1 compromise deed, which is binding force on the respondents.
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property has been settled upon Chellamuthaian and there upon to the person nominated by him. In case of his failure to nominate the successor, the eldest male descendant shall get the property and he should continue the charity work mentioned in the settlement deed. In so far as the residential property, the settlement deed excludes one room on the western side where the idols are kept and in the rest of the portion, he has permitted all his three sons and his wife to reside. The obligation has been cast upon his sons to carry out repair work jointly and to pay municipal tax jointly and on the demise of the settlor and his wife, the 'Samathegiri' should be carried out from and out of the income in 'A' schedule property. He has entrusted the responsibility of maintaining him and his wife during their old age upon the first defendant viz., Chellamuthaian. He has also restrained his sons from creating any encumbrance upon the suit property. It is also found in the settlement deed an onerous condition that, if his other sons failed to fullfil any of the obligations mentioned in the settlement deed, they have to vacate the house and hand it over to Chellamuthaian.
the suit house as early as 1929 and father of plaintiffs 4 to 7 vacated the
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house in the year 1949. Till date, the maintenance is carried out by the first defendant and after his demise by the second defendant. Tax is paid by him and enjoyed absolutely by the defendants. It is also proved through evidence that from and out of the income arrived from the agricultural land, the first defendant and after his demise, the second defendant is carrying out the pooja and charity work as found in the settlement deed. Though the appellants plead that they are in joint possession of the suit properties. Except Ex.A1, there is no other document to speak about the possession of the suit property. It is an admitted fact that the terms of the compromise was not acted upon. Further, the first defendant has disputed the very execution of that document. Therefore, even if there was a settlement arrived between the parties, since it was not acted upon, it has no force. The earlier suit in O.S.No.795/79 filed by the first defendant was supposed to be withdrawn in the terms of the panchayat as found in Ex.A1, this never happened. Infact, it is submitted that a decree has been passed in favour of the defendants in the suit.
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dismissed . No order as to costs. Consequently, connected Miscellaneous
Petition is also closed.
13.02.2017
Index:Yes/No Internet:Yes/No ari
To
The Principal Subordinate Court, Mayiladuthurai, Nagapattinam District. The Principal District Munsif Court, Mayiladuthurai, Nagapattinam District.
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Dr.G.Jayachandran, J.
ari
S.A.No.671 of 2007 & C.M.P.No.8888 of 2016
13.02.2017
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3 issues framed by the court
Whether the Courts below committed any error in finding that the settlement deed was acted upon and the compromise was not.
Whether any substantial question of law arises to interfere with the concurrent findings against the plaintiffs.
Whether the second appeal should be dismissed.
Subramanian and others
Kalliaperumal and others
G. Jayachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
