Allowed

Asokan@ Ashok v. Kaliyaperumal

Madras HC18 Oct 2019SA/207/2014

Case brief

AI extract

What is this about?

In a second appeal regarding a dispute over property title and shares, the single judge allowed the appeal. The court restored the trial court's decree, holding the first defendant entitled only to the specific share sold by the second defendant, and set aside the lower appellate court's decision granting a larger share.

What did the court decide?

Second appeal allowed; judgment and decree of the lower appellate court set aside; judgment and decree of the Trial Court restored.

Asokan@ Ashok Vs Kaliyaperumal — Partition | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.10.2019 CORAM:

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THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN S.A.No. 207 of 2014 and M.P.No. 1 of 2014

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Asokan @ Ashok

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..Appellants/ Ist Respondent in AS/Plaintiff

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Vs.

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1.Kaliyaperumal ..Ist Respondent/Appellant/ Ist defendant

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2.Ramanujam ..2nd Respondent/2nd Respondent/ 2nd Defendant

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Prayer: Memorandum of Second Appeal filed under Section. 100 of C.P.C. against the judgment and decree dated 26.09.2013 passed in A.S.No.5 of 2013 on the file of the II Additional District Court, Tindivanam in modifying the judgment and decree dated 21.02.2012 passed in O.S.No. 126 of 2010 on the file of the Additional Sub-Court Tindivanam.

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For Appellant : Mr.P.Mani

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For R1 : Mr.K.Anbarasan

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J U D G M E N T

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The plaintiff in O.S.No. 126 of 2010, whose suit for declaration of title and injunction was partly decreed by the Trial Court granting him 3/4 share, upon its modification by the lower Appellate Court restricting his share to 1/2 is on appeal.

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According to the plaintiff, the suit property measuring about 300 sq.mts. belonged to one Govindasamy, who died leaving behind his wife Ammayee Ammal and two sons, Sekar and Vadivel. The said heirs of Govindasamy had sold the entire extent of 300 sq.mts. to the plaintiff under a sale deed dated 05.07.2010, marked as Ex.A1. It is the contention of the plaintiff that the 1^st defendant claiming to have purchased portions of property from one Devaki Ammal, daughter of one Ramasamy and Ramanujam, son of one Narayanasamy attempted to interfere with his possession, which prompted him to file a suit for declaration and injunction.

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1/5

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https://hcservices.ecourts.gov.in/hcservices/

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The suit was resisted by the defendants contending that the suit property measuring about 9 cents in extent originally belonged to one Muthu Naidu, who died leaving behind two sons, Sadayappan and Ramasamy. Sadayappan had two sons namely, Narayanasamy and Govindasamy while Ramasamy had one daughter namely, Devaki Ammal. According to the defendants, Sadayappan and Ramasamy were each entitled to 4.5 cents. The 4.5 cents that belonged to Sadayappan devolved on Narayanasamy and Govindasamy in equal shares i.e., 2 ¼ cents each. According to the 1^st defendant, Ramanujam, son of Narayanasamy had sold 1/4 share that belong to him on 24.06.2010 and Devaki Ammal sold her 1/2 share to the first defendant on 20.06.2007. Therefore, according to the 1^st defendant he is entitled to 3/4 share in the suit property and the plaintiff if at all is entitled to only 1/4 share that belonged to Govindasamy.

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The Trial Court on a consideration of the evidence on record rejected the claim of the defendants that Devaki, daughter of Narayanaswamy was entitled to half share in the suit property. The Trial Court also concluded that as per Ex.A2 (Patta), the heirs of Narayanasamy and Govindasamy namely, Ramanujam being the son of Narayanasamy and Ammayee Ammal, Sekar and Vadival, being the wife and sons of Govindasamy would alone be entitled to the suit property. Considering the recitals in Ex.B5 (Sale deed) executed by Ramanujam namely, second defendant in favour of the first defendant, the Trial Court concluded that the plaintiff would be entitled to 3/4 share and the first defendant would be entitled to 1/4 share, which he had purchased from Narayanasamy. On the said conclusion, the Trial Court decreed the suit in respect of 225 sq.mts. and also granted a permanent injunction. Aggrieved, the first defendant preferred an appeal in A.S.No. 5 of 2013.

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The lower Appellate Court reversed the judgment and decree of the Trial Court to a limited extent wherein, it held that once the families of Narayanasamy and Govindasamy are found entitled to the entire extent of 9 cents, each one of them will get 1/2 share and therefore as the son of Narayanasamy, the second defendant / Ramanujam would get 1/2 share. Since the 1^st defendant had purchased the share of Ramanujam under Ex.B5(Sale deed), he would be entitled to 1/2 share. On the said findings, the learned Appellate Judge reversed the decree of the Trial Court and granted a declaration and injunction in respect of 150 sq.mts. Aggrieved, the plaintiff is on appeal. Originally, the notice of motion was ordered on 27.02.2014. Upon receipt of notice, Mr.K.Anbarasan, learned counsel had entered appearance for the respondents. The appeal itself was admitted on 06.09.2019. The following question of law was framed at the

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2/5

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https://hcservices.ecourts.gov.in/hcservices/

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time of admission:-

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“Whether the lower Appellate Court was right in concluding that the second defendant Ramanujam was entitled to half share in the suit property, particularly when the second defendant / second respondent had not challenged the decree coupled with the fact that the Sale Deed Ex.B5 executed by him in favour of the first defendant, he has clearly stated that he is entitled to 1/4 share in the suit property?”

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I have heard Mr.P.Mani, learned counsel appearing for the appellant and Mr.K.Anbarasan, learned counsel appearing for the respondent 1.

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Mr.P.Mani, learned counsel appearing for the appellant while elaborating the question of law would submit that once the second defendant / Ramanujam himself had accepted that he is entitled to only 1/4 share in the property and had chosen to execute Ex.B5 (sale deed) conveying the said 1/4 share to the first defendant, the lower Appellate Court was not right in decreeing the suit only in respect of the 1/2 share. According to him, the join Patta under Ex.A2 was issued on four persons namely, Ammayee Ammal, wife of Govindasamy, Sekar and Vadivel, sons of Govindasamy and Ramanujam, son of Narayanasamy. Though the plaintiff originally contended that Ramanujam has no right over the suit property and he was never in possession of the property, therefore, he has lost his right to the property, the Trial Court had concluded that the Ramanujam had 1/4 share in the property and he had sold that 1/4 share under Ex.B5(Sale deed) to the first defendant. The description of the property sold under Ex.B5 reads as follows:-

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“tpGg;g [uk ; hp/o/ tpf;fputhz;o rg;o kapyk; gr;rhaj;J a{dpaidr; nrh;e ;j bghpajr;R{h; (bjw;F) kJuh mfuk; fpuhkj;jpy; ej;jk ; epythpj;jpl;l rh;nt 418/4-00300 rJu kPl;lhpy; vd; ghfk; 4-y; xU ghfk; g[jpa rh;nt vz; 418/1-0.78.0 Vh;rpy; giHa rh;nt 133/1-2.20-y; tPjpf;F (t)/ jh';fs ; Vw;fdnt njtfp mk;khs ; mth;fsplk; fpiuak; bgw;w fPH;g [uk ; ghjp kidf;F (nk). nfhtpe;jrhkp eha[L tifawh mk;khapmk;khs ; ghf kidf;F (fp) Kj;jpahy; eha[L tifawh eha[L kidf;F (bj) ,jd; kj;jpapy; fp.nk.kPl;lh ; ,Ug[wKk; 2 . 6 bj.t.kPl;lh ; ,Ug[wKk; 28.9 rJu kPl;lh ; 75.14 mst[s ;s fhypkid j';fSf;F fpiuak;. nkw;go

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3/5

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https://hcservices.ecourts.gov.in/hcservices/

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brhj;J vd; nghpy; gl;lh vz;. 568 Mf cs;sJ.”

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From the above description, it could be seen that what has been sold under Ex.B5 is a specific extent of 75.14 sq.mts. within specific boundaries. Therefore, the first defendant cannot claim anything more than what he had purchased from Ramanujam. As regards the sale deed executed by the Devaki Ammal in favour of the first defendant, both the Courts below have found that Devaki Ammal was not entitled to right over the suit property and therefore, the said sale deed will not confer any right upon the first defendant. The lower Appellate Court has evidently overlooked the recitals in Ex.B5 when it came to the conclusion that Ramanujam / second defendant was entitled to 1/2 share in the suit property. In the light of the recitals found in Ex.B5 and the fact that Ramanujam has claimed right only in respect of 75.14 sq.mts. in the suit property, I do not think the lower Appellate Court was not right in recognising the right of the first defendant to an extent of land over and above what has been purchased by him from the second defendant, Ramanujam. Ramanujam himself had not chosen to claim right for more than 75 sq.mts. Once it is found that the sale deed executed by Devaki will not confer any right on the defendant, the second defendant / Ramanujam cannot claim that he is entitled to anything more than 1/4 share that is about 75.14 sq.mts. I am of the considered opinion, the lower Appellate Court was not right in granting a decree to the plaintiff in respect of 1/2 share, recognizing a right of Ramanujam over and above what was claimed by him. Therefore, the question of law is answered in favour of the appellant concluding that the 1^st defendant would be entitled only to the extent as has been conveyed to him under Ex.B5 and the remaining extent would belong to the plaintiff, who had purchased the entire property from Govindasamy, Ammayee Ammal, Sekar and Vadivel.

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In view of the conclusions, this second appeal is allowed, the judgment and decree of the lower Appellate Court are set aside and that of the Trial Court are restored. Consequently, connected miscellaneous petition is closed. However, there will be no order as to costs.

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-s/dAssistant Registrar

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True Copy Sub-Assistant Registrar

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kkn

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4/5

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https://hcservices.ecourts.gov.in/hcservices/

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To:-

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The II Additional District Judge, Tindivanam. 2. The Additional Sub-Judge Tindivanam. 3.The Section Officer VR Section High Court, Madras

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+1 cc to Mr.P.Mani Advocate sr87114
S.A.No. 207 of 2014
and
M.P.No. 1 of 2014
aa08/06/2020

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5/5

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https://hcservices.ecourts.gov.in/hcservices/

Asokan@ Ashok v. Kaliyaperumal

Case brief

What is this about?

What did the court decide?

Asokan@ Ashok v. Kaliyaperumal

Case brief

What is this about?

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