Disposed

R.Sivasubramaniyan v. R.Periasamy

Madras HC18 Dec 2023CRP/202/2023

Case brief

AI extract

What is this about?

The High Court, exercising power under Article 227, disposed of a long-pending partition suit by approving an out-of-court settlement. The court divided ancestral land among the two brothers and the legal heirs of their deceased sister, settled accounts with heirless Hindu temples, and directed the bank to release mortgaged title deeds to the parties who repaid the loan.

What did the court decide?

Settled and disposed of the pending partition suit; partitioned specific land areas among the petitioners and respondents; directed the bank to handover title documents; granted liberty to Hindu templ

R.Sivasubramaniyan Vs R.Periasamy — Partition | Madras HC (2023)

¶1

C.R.P. No.202 of 2023

¶2

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶3

DATED : 18.12.2023

¶4

CORAM

¶5

THE HONOURABLE MRS. JUSTICE T.V.THAMILSELVI

¶6

C.R.P.No.202 of 2023

¶7

and C.M.P.No.1642 of 2023

R.Sivasubramaniyan

... Petitioner

Versus

R.Periasamy

¶12

G.Guhan

¶13

Hemalatha

¶14

Arulmigu Bhaghavathiamman Deity, rep.by Dharmakartha K.S.Shanmugam Kalvettupalayam, Vengaumbur Village, Erode Taluk.

¶15

Arulmigu Akkaraipatti Ponkaliamman Arulmgu Akkaraipatti Muthusamy and Arulmigu Molipilli Annamar Swami Deities, rep. by the Executive Officer, Arulmigu Varadharaja Perumal Vagaiyara Thirukkoil Devasthanam, Vengumbur Village, Erode Taluk. .. Respondents

¶16

1/19

¶17

https://www.mhc.tn.gov.in/judis

¶18

PRAYER

¶19

C.R.P. No.202 of 2023

¶20

PRAYER :Civil Revision Petition is filed under Art. 227 of Constitution of

¶21

India, praying to set aside the fair order and decreetal order dated 11.11.2021 passed in I.A.No.2 of 2021 in O.S.No.156 of 2014 by the

¶22

learned 1^st Addl. District Judge, Erode.

¶23

For Petitioner : Mr.N.Thiagarajan

¶24

For Respondents : Ms.Chitra Sampath, Senior Advocate for Mr.T.S.Baskaran for R1

¶25

Mr.R.Sunilkumar for R2 and R3

¶26

Mr.V.Jeevagiridharan, Addl. Govt. Pleader for R4 & R5

¶27

O R D E R

¶28

Challenging the impugned order passed in I.A.No.2 of 2021 in O.S.No.156 of 2014 passed by the learned 1^st Addl. District Judge, Erode,

¶29

the Revision Petitioner/1^st defendant preferred this Civil Revision Petition.

¶30

The Revision Petitioner and the 1^st respondent are brothers and they

¶31

are aged about 70 years, further the suit connected with C.R.P. is pending for the past 10 years, on considering that, this court suggested to settle the issue between them in respect of division of property and for that, they after

¶32

2/19

¶33

https://www.mhc.tn.gov.in/judis

¶34

C.R.P. No.202 of 2023

¶35

accepting the suggestion given by this court, filed consent affidavit to settle the issue. The respondents 2 and 3, who are the legal heirs of their deceased sister viz., Thangammal @ Thangam Ganapathy of the Revision Petitioner also agreed to settle the issue amicably.

¶36

Heard the counsels appearing on either side. Since the revision

¶37

petitioner already settled some property in favour of Hindu Religious and Charitable Endowment Board, the counsel appearing for the said board also heard.

¶38

For the sake of convenience, the parties are referred as per the ranking in the suit.

¶39

Admittedly, the suit in O.S.No. 156 of 2014 was filed by the plaintiff for the relief of partition and other consequential relief against the defendants 1 to 3 herein. The plaintiff, 1^st defendant and mother of defendants 2 and 3 viz., Thangammal @ Thangam Ganapathy are the sons and daughter of one K.S.Ramasamy Gounder. Before the trial court, the

¶40

3/19

¶41

https://www.mhc.tn.gov.in/judis

¶42

C.R.P. No.202 of 2023

¶43

defendants contested the suit on various grounds, on the other hand, prior to the suit in respect of his undivided share in the suit properties, the 1^st defendant executed a settlement deed in favour of 4^th and 5^th respondent temples. Therefore, those temples were added as parties to the proceedings.

¶44

In the meantime, before the trial court, when the suit was posted for enquiry, the plaintiff filed an application in I.A.No.2 of 2021 praying to include a house property situated at Chennai as a suit property and the same was allowed by the trial court. Later, the said house property situated at Chennai was included as one of the suit property. Now, challenging the same, the 1^st defendant filed this present C.R.P. through which he denied the claim of the plaintiff in respect of the said house property, contending that it is his self acquired property and for the past 30 years, he enjoyed the property as an absolute owner. In this occasion, while proposing the settlement, the plaintiff viz., R.Periasamy as well as defendants 2 and 3, who are the legal heirs of deceased sister Thangammal @ Thangam Ganapathy are all agreed not to claim any share in the house property at Chennai and also agreed to forego the Will said to be executed in favour of plaintiff viz.,

¶45

4/19

¶46

https://www.mhc.tn.gov.in/judis

¶47

C.R.P. No.202 of 2023

¶48

R.Periasamy by his mother. On the other hand, they prayed to divide the suit property (O.S.No.156 of 2014) into 3 equal shares and prayed to allot each 1/3^rd share.

¶49

Based on the consent given by both plaintiff and defendants 1 to 3 along with their counsels, the settlement have been arrived between the parties. Accordingly, by way of granting preliminary decree in the suit properties, 1/3^rd share was allotted to the plaintiff, 1/3^rd share was allotted to 1^st defendant and 1/3^rd share allotted jointly to 2^nd and 3^rd defendants, who are legal heirs of deceased sister Thangammal @ Thangam Ganapathy. Thereafter, at the consent of all parties, Thiru T.Senthil Kumar, Advocate, Erode was appointed by this court as advocate commissioner to divide the property, accordingly the Commissioner with the help of Taluk Surveyor as well as with the assistance of plaintiff and defendants 1 to 3 along with revenue officials measured the property and submitted the commissioner's report along with two plans. Based on the commissioner's report, the plaintiff and defendants 1 to 3 have prayed to allot their respective shares in terms of commissioner report. On perusal of two plans viz., Plan No.1 and

¶50

5/19

¶51

https://www.mhc.tn.gov.in/judis

¶52

C.R.P. No.202 of 2023

¶53

Plan No.2, Plan No. 1 is pertaining to the field Nos. 267, 289 and 290 and Plan No.2 is pertaining to the field Nos. 294, 295 and 296. In the open court, the 1^st defendant, who is elder member of the family has agreed to take 1/3^rd share which was shown in green colour portion in both plans, since some of his absolute property is situated adjoining to the same. Accordingly, the green colour portion in Plan Nos.1 and 2 are allotted to the 1^st defendant (Revision Petitioner). Similarly, by consent, the plaintiff R.Periyasamy was allotted with pink colour portion and the legal heirs of their sister viz., the defendants 2 and 3 are allotted with brown colour portion, thereby properties are allotted in terms of plan Nos.1 and 2.

¶54

In this occasion, for the convenient enjoyment, both plaintiff and defendants 2 and 3 filed a joint memo and prayed to exchange some property, which was allotted to them. As per the joint memo, they prayed to exchange the following properties in the following manner :-

¶55

“1. In plan 1, the pink marked portion as B2 and B3

¶56

measuring a total extent of 124 ¼ cents in S.Nos. 290/3 and 289/4 shall stand alloted to the respondents 2 and

¶57

6/19

¶58

https://www.mhc.tn.gov.in/judis

¶59

C.R.P. No.202 of 2023

¶60

3/defendants 2 and 3, who are the deceased daughter's children viz., Gugan and Hemalatha.

¶61

2. In plan 1, the brown shaded portion marked as Part

¶62

C1 in 267/2, 267/3 and 267/4 shall stand allotted to the 1^st respondent/plaintiff R.Periyasamy.

¶63

3. In plan 2, the pink shaded portion in S.No.295/16

¶64

measuring 3.29 cents (PT-B5) shall stand allotted to the respondents 2 and 3/defendants 2 and 3, who are the deceased daughter's children viz.,G.Gugan and Hemalatha.

¶65

4. In plan 2, the brown shaded portion in S.No.295/14A

¶66

measuring 8.93 cents (PT-C5) shall stand alloted to the 1^st respondent/plaintiff R.Periyasamy.

¶67

5. In plan 2, the part of the pink shaded portion in the

¶68

southern extremity of S.Nos.295/1, 295/2 and 295/3 measuring about 4 to 5 cents shall stand allotted to respondents 2 and 3/defendants 2 and 3, who are the

¶69

deceased daughter's children viz., G.Gugan and Hemalatha.

¶70

7/19

¶71

https://www.mhc.tn.gov.in/judis

¶72

C.R.P. No.202 of 2023

¶73

6. In plan 2, the brown shaded portion in S.No.294/2

¶74

measuring 10 ½ cents (Part C1) shall stand allotted to the

¶75

plaintiff R.Periyasamy.”

¶76

After recording the joint memo in the presence of all, final decree has been passed in terms of joint memo of compromise and allotted shares to plaintiff and defendants 2 and 3, except the portions contained in the joint memo, the remaining portions allotted to the plaintiff and defendants 2 and 3 are the pink colour and brown colour respectively as per the Plan No.1 and 2 attached with Commissioner's report. In respect of the property at Chennai, it stands in the name of 1^st defendant is declared as his absolute property, in which plaintiff as well as defendants 2 and 3 have no right whatsoever. In the meantime, it was stated by either parties that a portion of 2 ½ cents in R.S.No. 296/3 shown as C3 in Plan No.2 was mistakenly omitted to show as a suit property, which is also the property of deceased K.S.Ramasamy Gounder. It is settled proposition that any number of properties can be included in partition while settling the issue between parties. Considering the same, this court passed an order to include the said property as a suit property and the same is allotted to respondents/defendants 2 and 3.

¶77

8/19

¶78

https://www.mhc.tn.gov.in/judis

¶79

C.R.P. No.202 of 2023

¶80

On this occasion, a joint memo was also filed on the side of plaintiff and defendants 2 and 3 stating that there was a loan obtained by the father of plaintiff and defendant No.1 viz., K.S.Ramasamy Gounder by mortgaging the property in Survey No.296/3, 295/1 to 10 and availed a loan with Canara Bank, Thamaraipalayam Branch, Erode District in A/c. Nos.1646840010254 and 1646881002040. Further, it was stated that after the demise of K.S.Ramasamy Gounder, the Canara Bank filed a suit in O.S.No.437/2011 for the recovery of the said loan and the same was repaid by them alone viz., Plaintiff and defendant Nos.2 and 3 only and ultimately, the suit was dismissed as the loan was repaid in the year of 2016. However, after discharging the loan, the title deeds to those properties not handed over by the bank as they sought consent from another son/1^st defendant. In this regard, they seek a direction from this court to hand over the title documents to them. In this regard, admittedly, the loan was settled by plaintiff and defendant Nos.2 and 3. Therefore, after closing the loan, keeping the document by the bank would cause much inconvenience to the party who settled the loan. Hence, this court directs the Canara Bank, Thamaraipalayam Branch, Erode District to hand over the title documents to

¶81

9/19

¶82

https://www.mhc.tn.gov.in/judis

¶83

C.R.P. No.202 of 2023

¶84

the plaintiff R.Periyasamy, which was deposited in A/c. Nos.1646840010254 and 1646881002040. On receipt of the title documents, the plaintiff is directed to hand over a copy of the title deeds to the 1^st defendant as well as to 2^nd and 3^rd defendants. In this regard, the 1^st defendant also not raised any objection to hand over the title deed to the plaintiff.

¶85

In conclusion, final decree is passed as follows :-

¶86

a) The 1^st defendant R.Sivasubramaniam is allotted with the following properties :-

¶87

i) an extent of 53 – ½ cents in R.S.No.290/3, shown with green colour

¶88

in plan No.1, noted as A3.

¶89

ii) an extent of 45 – ¼ cents in R.S.No.289/4, shown with green colour in plan No.1, noted as A2.

¶90

iii) an extent of 1.52 acres in R.S.No.267/2, shown with green colour in plan No.1, noted as A1.

¶91

iv) an extent of 4 cents out of 8 cents in R.S.No.294/1, shown with green colour in plan No.2, noted as A1.

¶92

10/19

¶93

https://www.mhc.tn.gov.in/judis

¶94

C.R.P. No.202 of 2023

¶95

v) an extent of 5 cents in R.S.No.295/8 part, 9 part and 10 part, shown with green colour in plan No.2, noted as A2.

¶96

vi) an extent of 53.10 cents in R.S.No.295/12, shown with green colour in plan No.2, noted as A3.

¶97

vii) an extent of 8.93 cents in R.S.No.295/14A, shown with green colour in plan No.2, noted as A4.

¶98

viii) an extent of 3.29 cents in R.S.No.295/16, shown with green colour in plan No.2, noted as A5.

¶99

b) The plaintiff R.Periyasamy is allotted with the following properties :-

¶100

i) an extent of 1.52 acres in R.S.Nos.267/2 part, 267/3 part and 267/4

¶101

part, shown with brown colour in plan No.1, noted as C1.

¶102

ii) an extent of 1.67 acres in R.S.Nos.267/1 and 267/2 part, shown with pink colour in plan No.1, noted as B1.

¶103

iii) an extent of 10 – ½ cents in R.S.No.294/2, shown with brown colour in plan No.2, noted as C1.

¶104

iv) an extent of 10 – ½ cents in R.S.No.294/2, shown with pink colour in plan No.2, noted as B1.

¶105

11/19

¶106

https://www.mhc.tn.gov.in/judis

¶107

C.R.P. No.202 of 2023

¶108

v) an extent of 3 cents out of 6 cents in in R.S.No.294/5, shown with

¶109

pink colour in plan No.2, noted as B6.

¶110

vi) an extent of 45.55 cents in R.S.Nos.295/7, 295/6, 295/5 part, 295/8 part, 295/9 part and 295/10 part, shown with pink colour in

¶111

plan No.2, noted as B2.

¶112

vii) an extent of 6 cents in R.S.No.295/14B, part shown with pink colour in plan No.2, noted as B3.

¶113

viii) an extent of 2.93 cents in R.S.No.295/14A, shown with pink colour in plan No.2, noted as B4.

¶114

ix) an extent of 8.93 cents in R.S.No.295/14A, shown with brown colour in plan No.2, noted as C5.

¶115

c) The defendants 2 and 3 namely Hemalatha and Guhan are allotted with the following properties :-

¶116

i) an extent of 79 cents in R.S.No.290/3 part, shown with brown colour in plan No.1, noted as C3.

¶117

ii) an extent of 79 cents in R.S.No.290/3 part, shown with pink colour in plan No.1, noted as B3.

¶118

12/19

¶119

https://www.mhc.tn.gov.in/judis

¶120

C.R.P. No.202 of 2023

¶121

iii) an extent of 45 – ¼ cents in R.S.No.289/4 part, shown with brown colour in plan No.1, noted as C2.

¶122

iv) an extent of 45 – ¼ cents in R.S.No.289/4 part, shown with pink colour in plan No.1, noted as B2.

¶123

v) an extent of 12 – ¼ cents in R.S.No.294/7 part, shown with brown colour in plan No.2, noted as C2.

¶124

vi) an extent of 2 – ½ cents in R.S.No.296/3 part, shown with brown colour in plan No.2, noted as C3.

¶125

vii) an extent of 36.22 cents (+) 4.7 cents = 40.92 cents in R.S.Nos.295/1, 295/2, 295/3 part and 295/4, shown with brown colour in plan No.2, noted as C4 as well as the southern portion of R.S.Nos.295/1, 295/2 and 295/3 (4.7 cents) with pink colour.

¶126

viii) an extent of 3.29 cents in R.S.No.295/16, shown with brown colour in plan No.2, noted as C6.

¶127

ix) an extent of 3.29 cents in R.S.No.295/16, shown with pink colour in plan No.2, noted as B5.

¶128

13/19

¶129

https://www.mhc.tn.gov.in/judis

¶130

C.R.P. No.202 of 2023

¶131

d) Perused Commissioner's report. The common entitlements are as

¶132

follows :-

¶133

i) the plaintiff, 1^st defendant and defendant Nos.2, 3 (jointly) are entitled each 1/3^rd share (from the share already having) in the well in R.S.No.290/4 measuring 6 cents as noted in Plan No.1.

¶134

ii) Similarly, they are entitled each 1/3^rd share as above in the well measuring 8 – ½ cents in R.S.No.267/4 and in the well in R.S.No.267/2 measuring 8 cents as noted in plan No.1.

¶135

iii) the plaintiff, 1^st defendant and defendant Nos.2, 3 (jointly) entitled to irrigate their respective lands allotted now in the ratio of 1:3 by using the electric motors i.e. S.C.No.198/3 HP, S.C.No.492/7.5 HP and S.C.No.105/5 HP which are all, already fitted in the wells situated in R.S. Nos. 290/4, 267/4 and 267/2 respectively.

¶136

iv) without any hindrance to ingress and egress their respective property, the plaintiff and the defendants 1 to 3 are entitled to make use of 8 – ½ cents area in R.S.Nos. 267/4 part, 289/4 part, 290/3 part, 290/5 part and 289/3 part with a width of 4 feet which is shown as

¶137

14/19

¶138

https://www.mhc.tn.gov.in/judis

¶139

C.R.P. No.202 of 2023

¶140

red line in plan No.1 for the purpose of laying the underground pipeline to take water for the purpose of irrigation from the common wells to their respective lands.

¶141

v) the yellow marked cart track in R.S.No.267/5 measuring 8 – ½ cents, the continuing cart track in R.S.Nos.267/3 and 267/2 upto the common well (in R.S.No.267/2) measuring 7 cents, totally measuring 15 – ½ cents as shown in the plan No.1 to be used by the plaintiff and the defendants 1 to 3 in common to reach their respective properties as well to reach the common wells. The parties are also entitled to lay underground pipeline in the above yellow marked cart track. Further, 1 cent reserved on the eastern side of the well in R.S.No.267/2 as noted in the Plan No.1 for common usage.

¶142

vi) the well in R.S.No.294/15 measuring 5 cents as in Plan No.2 to be used by the plaintiff and defendants 1 to 3 in common. They are entitled each 1/3^rd share as noted in the earlier paragraphs.

¶143

vii) the yellow marked pathway in Plan No.2 measuring 5 cents with a width of 6 feet running in R.S.No.295/1 part, 2 part, 3 part, 4 part and 7 part to be used by the plaintiff and the defendants 1 to 3 in

¶144

15/19

¶145

https://www.mhc.tn.gov.in/judis

¶146

C.R.P. No.202 of 2023

¶147

common, besides laying underground pipeline to take water from the well in R.S.No.294/15 to their respective lands.

¶148

viii) in the area measuring ½ (half) cent with a width of 1 meter on the western side of R.S.No.295/7 and 8 as shown in the plan No.2 in red colour, which is the continuation of the yellow coloured 6 feet pathway, to be used to lay underground pipeline to take well water to the properties of the plaintiff and to the 1^st defendant, without causing hindrance to the plaintiff for ingress and egress to his land.

¶149

ix) the violet coloured portion measuring 3 cents in R.S.No.295/18 to be used in common by the plaintiff and the defendants 1 to 3.

¶150

Therefore, the partition suit in O.S.No.156 of 2014 pending between the parties before the 1^st Addl. District Judge, Erode is ordered to be disposed of as settled out of court in this C.R.P. proceedings. If any applications are pending along with the suit is ordered to be closed.

¶151

Furthermore, in earlier days by way of gift deed, the 1^st defendant conveyed some common undivided suit property to the 4^th and 5^th defendant

¶152

16/19

¶153

https://www.mhc.tn.gov.in/judis

¶154

C.R.P. No.202 of 2023

¶155

temples and the same was admitted by either side. So, liberty is granted to the 4^th and 5^th defendant temples to work out their remedy through court of law in the share allotted to the 1^st defendant, which is shown in green colour portion in the commissioner's plans annexed with this decree under equity. The properties allotted to the plaintiff and defendant Nos.2 and 3 are no way connected with the gift deed said to be executed in favour of 4^th and 5^th defendant temples by the 1^st defendant.

¶156

In conclusion, before the trial court for engrossing the final decree, parties are directed to deposit NJS within a period of four weeks from the date of receipt of copy of this order. The web copy of this order shall be used for the purpose of drafting final decree. Thereafter, within two weeks from the date of receipt of NJS, the trial court is directed to draw the final decree in accordance with the above allotment of the properties as plaintiff and 1^st defendant are aged more than 70 years old. The report and plan Nos.1 and 2 submitted by Advocate Commissioner is treated as part and parcel of the decree.

¶157

17/19

¶158

https://www.mhc.tn.gov.in/judis

¶159

C.R.P. No.202 of 2023

¶160

On considering the additional steps taken by the Advocate

¶161

Commissioner, the plaintiff and the defendants 1 to 3 are directed to pay a sum of Rs.10,000/- each towards additional remuneration to the Advocate Commissioner through RTGS.

¶162

18.12.2023

¶163

Index: Yes/No Internet: Yes/No rpp

¶164

¶165

I Addl. District Judge, Erode.

¶166

The Manager, Canara Bank, Thamaraipalayam, Erode Dt.

¶167

The Commissioner, H.R. & C.E. Department, Chennai.

¶168

The Public Prosecutor, High Court, Madras.

¶169

18/19

¶170

https://www.mhc.tn.gov.in/judis

¶171

C.R.P. No.202 of 2023

¶172

T.V.THAMILSELVI, J.

¶173

rpp

¶174

C.R.P. No.202 of 2023

¶175

18.12.2023

¶176

19/19

¶177

https://www.mhc.tn.gov.in/judis

R.Sivasubramaniyan v. R.Periasamy

Case brief

What is this about?

What did the court decide?

R.Sivasubramaniyan v. R.Periasamy

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Loheswari @ Priya Vs N.Srinivasan

Dheivanilla Vs Mayilvahanan

Auxlin Diana Vs Praveen Kumar

Mari Naicker Vs Padavettammal

N. Joseph Victor Prem Kumar Vs Jenipha Kingslin

V.Mahalakshmi Vs P.Gubendran