Back
MADRAS HIGH COURT
T. Ravindran, J.
R. Balasundaram, R. Ramalinga Chettiar (Died), Sundara Valli Ammal (Died), Gnanambal (Died), Radhambal (Died), Rukumaniammal (Died), Lakshmipathi (Died) & Ors. - Appellants
Versus
R. Krishnan - Respondent
S.A. No. 139 of 2011
Decided On : 14-11-2016
For the Appellants :Mr. D. Nellaiappan, Advocate.
For the Respondent:Mr. K.V. Sundararajan, Advocate.
Headnote:
Challenge in this second appeal is made to the Judgment and decree passed in A.S. on the file of the VII Additional City Civil Court, Chennai confirming the judgement and decree passed in on the file of the VIII Assistant City Civil Court, Chennai, by the defendants.uit has been laid for partition – First defendant is the son of the second Defendants 2 to 6 and the mother of the defendants 7 to 9 viz., Andal Ammal are the sons and the daughters of late Punniavathy Ammal wife of late Rajagopal Chettiar –Held, Further, on an analysis of the evidence of DW1, it is highly doubtful whether he would have been alive on the date of the alleged adoption – Though the adoption said to have taken place, no material is placed to hold as to when actually the first defendant was born – According to the first defendant, he was at the time of his marriage and that, his marriage took place – He was examined – Therefore, a suggestion was put to him that he would be aged 49 years at the time of his deposition, but that was denied by the first defendant – He has also admitted that he had not produced his school leaving certificate to establish his date of birth and as he did not mark the same, a suggestion was also put that he was not born – Considering the above facts calculating the age of the first defendant vis-a-vis his age at the time of his marriage, as admitted by him, it could be seen that he would have not been born – Second appeal is devoid of merits and the same is dismissed.
T. Ravindran, J.
Challenge in this second appeal is made to the Judgment and decree dated 10.07.2008 passed in A.S. No. 528 of 2007 on the file of the VII Additional City Civil Court, Chennai confirming the judgement and decree dated 11.12.2006 passed in O.S. No. 1497 of 1991 on the file of the VIII Assistant City Civil Court, Chennai, by the defendants.
2. The suit has been laid for partition.
3. The case of the plaintiff in brief is as follows:
The first defendant is the son of the second defendant. Defendants 2 to 6 and the mother of the defendants 7 to 9 viz., Andal Ammal are the sons and the daughters of late Punniavathy Ammal wife of late Rajagopal Chettiar. The suit property was originally owned and possessed by late Vadamalai Chettiyar under the sale deed dated 01.08.1967. Vadamalai Chettiyar died on 12.02.1911 leaving behind his wife Unnamalai Ammal as his sole and surviving legal heir. After his death, Unnamalai Ammal inherited the suit property and was enjoying the same. Unnamalai Ammal died on 13.10.1955 and after her death, the suit property was inherited by Kannammal, the only sister of Vadamalai Chettiyar as the legal heir of Late Vadamalai Chettiar. After the death of Kannammal, the suit property was inherited by her daughter Punniavathy ammal. The said Punniavathy ammal, who is the mother of the plaintiff, was enjoying the suit property till her life time and she died in the year 1979 leaving behind her son and daughters to jointly inherit the property and enjoy the same in common. Thus, the plaintiff is entitled to get 1/7th share in the suit property. While so, the first defendant, without any authority started to interfere with the suit property and he inducted tenants in the suit property and collected rent and profits in collusion with his father viz., the second defendant. However, the second defendant has been giving assurance that he will partition the suit property amongst the legal heirs of Punniavathy Ammal. However, inasmuch as the defendants 1 & 2 did not keep up their promise, the plaintiff caused a legal notice dated 24.07.1989 demanding partition. A reply notice dated 06.08.1989 was issued stating that the first defendant is the absolute owner of the suit property and that, the deceased Unnamalai Ammal had adopted the first defendant on 02.09.1954. The above case of the adoption pleaded by the first defendant is totally false and not accepted by the plaintiff. Hence, the suit for partition.
4. The case of the defendants in brief is as follows:
The suit is not maintainable either in law or on facts. The relationship of the parties is admitted. It is true that after the death of Vadamalai Chettiar, the suit property was inherited by his widow Unnamalai Ammal. The said Unnamalai Ammal died on 13.10.1955 and as she had taken the first defendant as her adopted son on 02.09.1954, the suit property was succeeded to by the first defendant as her adopted son and he had been in possession and enjoyment of the same from 13.10.1955 onwards by paying taxes etc., It is only the first defendant, who had performed the funeral obsequies and other ceremonies of Unnamalai Ammal. Therefore, the question of Kannammal succeeding to the property, after the death of Unnamalai Ammal does not arise. Further, the question of Punniavathy Ammal succeeding to the property, after the death of Kannammal also does not arise. Punniavathy Ammal, who is the grandmother of the first defendant was living with the first defendant's father in the suit property and therefore, the mere fact that Punniavathy Ammal was living with the second defendant would not lead to the conclusion that either Punniavathy ammal or Kannammal had right to the suit property. The plaintiff is not entitled to seek any partition in the suit property. The true facts are mentioned in the reply notice dated 06.08.1989. Hence, the suit is liable to be dismissed.
5. In support of the plaintiff's case, PW1 has been examined and Exs.A1 to 7 were marked. On the s
