Mottachiammal, Vs Ayyammal

PRAYER: Second Appeal is filed under Section 100 of C.P.C , against the judgement and decree dated 29.01.2010 made in A.S.No.15 of 2008 on the file of the II Additional Sub Court, Coimbatore confirming the judgement and decree dated 28.02.2007 made in O.S.No.1565 of 2003 on the file of the Principal District Munsif Court, Coimbatore.

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For Appellants : Ms.K.Megala for Mr. N.Manokaran For Respondents : Mr.P.Valliappan, senior counsel for Mr.K.M.Haresh for RR3 to 5 : R1-Died : R2, R6 &7- No appearance.

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JUDGEMENT

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The appellants are the defendants 4 and 5 against whom the plaintiffs have filed a suit for partition and separate possession of their half share in

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'A' and 'B' suit schedule properties. The trial Court has partly decreed the suit and granted the relief of half share to the plaintiffs only in respect of 91 cents. The defendants 4 and 5 had preferred first appeal challenging the judgement and decree of the trial Court and the same was also dismissed by confirming the judgement of the trial Court. Now the defendants 4 and 5 have preferred this second appeal by challenging the judgement of the

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courts below.

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2.The short facts pleaded in the plaint by the plaintiffs are as follows:

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The suit properties were belonged to one Kalippanadi who is the common ancestor of the plaintiffs and the defendants. The wife of Kalippanadi died before 35 years and thereafter, Kalippanadi also died. They have two daughters by name Valliammal and Vellachiammal and one

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son by name Palaniappan. Valliammal died in the year 1997. The plaintiffs 1 to 3 are the daughters of the deceased Valliammal. The 4^th plaintiff is the son of Valliammal. Vellachiammal died in the year 1987. The 1st defendant is Vellachiammal's son. The defendants 2 and 3 are the wife and minor son of deceased Subramani. Palaniappan has been living with one Mottachiammal and she is not his wife. The 5the defendant is not the son born through the 4^th defendant and Palanaiappan, however he has been impleaded as a party to avoid future technical issues if any. The suit A schedule properties are landed properties and B schedule properties are house sites.

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2.1. The suit A schedule properties originally belonged to one Nagapanadi by virtue of a registered sale deed dated 23.07.1932 . The said property has been mortgaged in favour of one Selamba pannadi on 9.12.1935 and later it was once again mortgaged in favour of Anganaicken on 14.8.1937. On 05.6.1939-Nagapanadi sold an extent of 1 acre 30 cents of the suit properties to Palaniammal. He sold the remaining 20 cents in favour of Mariammal, Valliammal and Vellachiammal through a registered

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sale deed dated 24.7.1965. The mortgage loan in respect of 'A' suit schedule property has been discharged by Palaniammal's husband. Through a settlement deed dated 01.11.1943-Palaniammal has settled 65 cents in favour of 4^th defendant. As the 4^th defendant did not have any child and her husband Palaniappanadi also died on 5.8.2003, the title of the said property came back to the settlor Palaniammal. The plaintiffs along with defendants 1 to 3 are in enjoyment of suit 'A' schedule property as the legal heirs of the original owner.

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2.2. On 11.10.1944 Palaniammal had cancelled the settlement deed dated 01.11.1943, Valliammal and Vellachiammal had purchased the remaining 26 cents in suit 'A' schedule property. On 18.7.1968 they executed a settlement deed in favour of Pallaniappan whereunder he was given the right to enjoy the property till his lifetime without any power of encumbrance in it and giving the vested remainder to his legal heirs. Palaniapan did not have children, hence the absolute estate has become inoperative and the title reverts back to the settlors and thus it is inherited by their legal heirs.

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2.3. Palaniappan executed a registered Will dated 21.08.1989. Under this Will, he bequeathed the properties to the first defendant and his sister, Sundarammal, who had previously passed away unmarried and without any children. However, the Will is not legally valid, as Palaniappan had no authority to dispose of the plaint schedule properties. By virtue of a partition deed dated 22.01.1936, the suit 'B' schedule property was bequeathed to Nagapanadi and Kaliapanadi. After the demise of Nagapanadi on 16.06.1941, the defendants settled the suit 'B' schedule property infavour of his wife Palaniammal. The suit properties are in joint enjoyment of the defendants 1 to 3 and the plaintiff. On 05.08.2003, after the demise of Palaniapandi, defendants 4 and 5 have claimed right in the suit properties; they do not have any right in the suit property. As the plaintiff 's half share and the defendants 1 to 3 have got the remaining half share, a suit has been filed for seeking the share of the plaintiff which is measurable at half share.

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3. The averments made in the written statement filed by the first defendant are as follows:

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Mottachiammal is not the wife of Palaniappan. It is false to state that the plaintiffs are in enjoyment of the suit property. Palaniammal and 6 of 14

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Palaniappan were in enjoyment of the suit property by residing in the hut there. On 5.8.2003 Palaniappan died and the defendants are inherited the suit property and were in enjoyment of the same. On 18.7.1968 Valiammal and Vellachiammal had executed a settlement deed in favour of Palaniappan. So, it is unfair on the part of the plaintiff to disturb the possession of the defendants 1 to 3. On 21.8.1989 the said Planaiappan had taken possession pursuant to the Will. As Sundharammal was not a legal

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heir, the defendants are the absolute owners of the suit property.

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4. The written statement filed by the defendants 4 and 5 is in brief:

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The suit properties were originally belonged to the defendants' common ancestor by name Palaniapanadi and Kaliapanadi. Kaliapanadi had married Palaniammal; Kaliapanadi has not married anyone other than Palaniammal. They had two daughters by name Valliammal and Vellachiammal and one son by name Palaniappan. Valiammal died in the year 1997. The plaintiffs 1 to 3 are the sons of Valiammal and the 4^th defendant is the daughter of Valiammal. Valiammal and Vellachiammal did

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not have any right in the suit property. Vellachiammal died in the year 1987. The 5^th plaintiff was born through Palaniappan and the 4^th defendant married in the year 1942. The defendants 4 and 5 are the legal heirs of Palaniappan's share and they have sold 65 cents in suit A schedule and 1^st item in suit 'B' schedule infavour of 4^th defendant through a settlement deed. Planaiappan is entitled to 65 cents in suit A schedule property and 1^st item in suit 'B' schedule property. The Will dated 21.8.1989 is not true.

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5. On the basis of the above pleadings the Trial Cout has framed the following issues:

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"1.4k; gpujpthjp ,we;j gHdpag;gdpd; rl;lg;g{h;tkhd kidtp vd;gJ rhpah>

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5k; gpujpthjp gHdpag;gdpd; rl;lg;g{h;tkhd thhprh>

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3.thjpfs; nfhupa ghfg;gpuptpid ghpfhuk;/ jdp RthjPdg; ghpfhuk; fpilf;fj;jf;fjh>

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4.ntW vd;d ghpfhuk;>"

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6. During the course of the trial, on the side of the plaintiffs two

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witnesses have been examined as P.W.1 and P.W.2 and Exs.A1 to A11 were

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marked. On the side of the defendants four witnesses have been examined

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as D.W.1 and D.W.4 and Exs.B1 to B38 were marked.

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7. At the conclusion of the trial and on considering the materials

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available on record the trial Court had decreed the suit as prayed and the First appeal preferred by the defendants 4 and 5 also got dismissed by confirming the judgement and decree of the trial Court. Now the defendants 4 and 5 have preferred this second appeal.

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8. The learned counsel for the appellants submitted that the 2^nd

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appellant is son of late Palaniappan and PW.1's admission also corroborated that the 2^nd appellant was born through Palaniappan. However, the Trial Court did not consider the same. PW.1 and the 1^st defendant had admitted that the 1^st appellant was married to Palaniappan but however the Courts below did not grant any share to the 5^th defendant.

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9. The appellants' limited contention pertains only to the property

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settled in favor of the 4th defendant specifically, 65 cents under Ex.A6 and the 26 cents settled in favor of Palaniappan under Ex.A8, dated 18.07.1968. The 5^th defendant claims that he is also one of the legal heir of the deceased

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Palaniapan but the Courts below did not consider the same. As per the settlement deed Ex.A8 , the settlors who are the sisters of the Palaniapan have made a conditional arrangement that the Palaniapan will not have the life interest on the subject property and absolute interest will be inherited by his children, and if he did not have any children it will go back to the legal heirs of the settlor. Ex.A6, settlement deed dated 1.11.1943 which was executed by the mother of the Palaniapanadi in favour of 4^th defendant and by virtue of the same, the 4^th defendant has also been given with life interest. If the settlee namely the 4^th defendant did not have any children through Palaniapan, the property will go back to the legal heirs of the settellor. The 5^th defendant claims that he is the son born through Palaniapan and the 4^th defendant and hence, the absolute interest in respect of the property settled vide Ex.A6 and Ex.A8 will be inherited by him and he would get an absolute interest over the same.

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10. The learned counsel for the respondents submitted that even though the 5^th defendant was born to Palaniappan through the 4^th defendant

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there is no valid marriage between the Palaniappan and the 4^th defendant Motachiammal. The learned counsel for the respondent further submitted that in the Will executed by Palaniapan through Ex.B11 he has stated that despite he married four wives, he did not have any children and he was made to understand that there is no possibility for him to have any child due to medical reasons.

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11 . Even though the said Palaniapan did not have any right to execute the Will dated 21.8.1989, the genuineness of the Will has not been denied. But the recitals are very much the statements of the Palaniapan who was the executant. He himself has stated that he did not have any child of his own and it is also made known that there is no possibility to have any child of his own at any future point of time due to medical reasons.

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12. Under such circumstances, the 5^th defendant cannot claim himself as the son born through Planaiapan. The best evidence available is the statement of Planaiapan himself ascribed in the Will dated 21.8.1989. Even the witnesses examined on the side of the defendants had admitted about the genuineness of the Will and the signature of Planaiapan over the same.

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Hence, I do not find fault with the Courts below in appreciating the above said evidence to deny the legal-heirship of the 5^th defendant as the son born through Planaiapan and the 4th defendant. In view of the above stated reasons, I do not find any ground, making out any question of law much less a substantial question of law, for admitting the second appeal.

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In the result, the Second Appeal is dismissed. The judgement and decree dated 29.01.2010 made in A.S.No.15 of 2008 on the file of the II Additional Sub Court, Coimbatore is confirmed. No costs. Consequently connected miscellaneous petition is closed.

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21.01.2025

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jrs Index: Yes Speaking Order Internet: Yes Neutral:Yes

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To

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