Second appeal by the unsuccessful plaintiff in a partition suit challenging only the quantum of share granted. Both lower courts had rejected Ex.B1 Will for want of attestation proof. The High Court recalculated shares on intestate succession, awarding the appellant 4/6th share.
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S.A.No.92 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.04.2024
CORAM
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
S.A.No.92 of 2021 and C.M.P.No.1995 of 2021
Kandasamy
...Appellant
Vs.
1.Parvathy 2.Muruganandham ...Respondents PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code,1908, against the judgment and decree of the Additional District and Sessions Court at Ariyalur dated 21.11.2019 in A.S.No.7 of 2019 partly reversing the judgment and decree passed by the Sub-ordinate Judge at Ariyalur, dated 10.01.2019 in O.S.No.31 of 2013.
For Appellant : Mr.P.Valliappan Senior Counse for Mr.N.Loganathan For Respondents : Mr.B.Balavijayan for M/S.C.S. Associates
O R D E R
The unsuccessful plaintiff in the suit for partition is the appellant. The
appellant/ plaintiff filed a suit for partition claiming plaintiff's 4/6th share in the suit properties. The suit was dismissed by the Trial Court. Aggrieved by the same, the plaintiff preferred an appeal in A.S.No.7 of 2019 on the file of Additional District cum Sessions Court, Ariyalur and the first appellate Court
S.A.No.92 of 2021
concurred with the findings of the Trial Court. Aggrieved by the concurrent
findings, the appellant/plaintiff has come up by way of second appeal.
S.A.No.92 of 2021
suit for partition and possession of plaintiff's 4/6th share in the suit property.
substantial questions of law vide order dated 12.02.2021 and the same reads as follows:-
1. Whether the Lower Appellate Court is correct in law
S.A.No.92 of 2021
in granting only 1/3rd share to the appellant despite rejecting Exhibit B1, Will dated 19.05.1994 and the plea of ouster raised by the respondent?
6(a). The Trial Court, on appreciation of oral and documentary evidence, came to the conclusion that the scribe of the Will cannot be equated with the attestor so as to satisfy the criteria laid down under Section 68 of the Indian Evidence Act and held that Ex.B1, Will is not proved in the manner known to law and dismissed the suit.
(b) Aggrieved against the said dismissal order, the plaintiff has preferred an appeal in A.S.No.7 of 2019 before the learned Additional District and Sessions Judge, Ariyalur. The Lower Appellate Court has also observed that failure on the part of the defendants to examine anyone of the attestor of Ex.B1, Will, the case of the defendants was rejected. Taking into consideration that there are 3 persons in the partition suit, each persons are entitled to 1/3rd share and accordingly, preliminary decree of partition for 1/3rd share was granted.
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the present appeal is filed by the appellant.
She died in the year 1994. On her death, 1/2 share of the properties devolve upon the plaintiff and another 1/2 share devolve upon her husband Ganesan. The said Ganesan died on 11.10.2012. On his death, both the plaintiff and defendants are entitled to 1/3 of ½ i.e., 1/6th share each and hence, the plaintiff is entitled to 4/6th share while the defendants are entitled to 1/6th share each and accordingly, the quantum of the share is re-modified on the above facts and circumstances of this case.
S.A.No.92 of 2021
b) In view of the above facts and circumstances of the case, there will be
no order as to costs.
c) Consequently, the connected miscellaneous petition is closed.
15.04.2024
Index : Yes/No Internet : Yes/No Neutral Citation Case : Yes/No nr
To 1.The Additional District and Sessions Court, Ariyalur
2.The Sub-ordinate Judge, Ariyalur
S.A.No.92 of 2021
RMT.TEEKAA RAMAN,J.,
nr
S.A.No.92 of 2021 and C.M.P.No.1995 of 2021
15.04.2024.
1 issue framed by the court
Whether the plaintiff was entitled to a 4/6th share in the suit property given the intestate succession of Chinnapillai Ammal and Ganesan, notwithstanding the rejected Will Ex.B1 and plea of ouster.
2 provisions across 2 enactments
Kandasamy
Parvathy
Muruganandham
RMT.TEEKAA RAMAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
