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2019 Supreme(Mad) 839
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. SATHISH KUMAR, J.
P. Govindammal & Another – Appellants
Versus
P. Marathal & Others – Respondents
Second Appeal No. 801 of 2012 & M.P. No. 1 of 2012
Decided on : 03-04-2019
For the Appellants :T.R. Rajagopalan for M/s. K.S. Karthik Raja, Advocates.
For the Respondents:A.K. Kumarasamy, K.S. Kaviarasu, P. Muthukrishnana, Advocates
Headnote:
Civil Procedure Code,1908 - Section 100 - Suit properties - Partition - Share - Decreed - Plaintiffs and defendants 2 to 4 are children -First defendant is his wife - Suit properties belonged to the said - He died intestate - Plaintiffs are entitled to 1/6th share each - Second defendant has filed a suit for partition in O.S.No. - Third defendant in the present suit obtained signatures of plaintiffs and undertook to get the share of the plaintiffs. However, the plaintiffs came to know that the defendant has not prosecuted the above suit - Second defendant is only son of his father -The relation between him and his mother and sisters were quite cordial. Apart from immovable properties described in plaint, his father has also left behind cash more than Rs.5 lakhs - During 16th day ceremony, a family arrangement has been reached between the defendants and his mother and sisters in presence - Family arrangement was finalized and the same was reduced into writing onand signed by the plaintiffs and defendants. – Held, contention of defendant that these documents came into existence during pendency of the subsequent suit cannot be countenanced - Therefore, when conduct of the defendants itself create serious doubt about the documents, merely on basis of withdrawal of certain amount as per their entitlement, plea of estoppal cannot be pressed into service in facts and circumstances of the case - Manner in which the explanation offered by the second defendant in his written statement for not referring documents said to be in his possession, immediately after the death of his father, in the earlier suit and the explanation offered for filing of alleged compromise memo to avoid Court Fee is also highly improbable - It is specific contention of plaintiff that their signatures given in previous suit to the third defendant for conducting the case on behalf of plaintiffs and others, has now she joined hands with second defendant and those documents came into existence - Conduct of not mentioning those documents in earlier occasion and doubt with regard to the Will as discussed above, this Court holds that plaintiffs case is more probabilized than defendants case - Accordingly, second appeal is allowed - Consequently, connected miscellaneous petition is closed.
(Prayer: Second Appeal has been filed under Section 100 of C.P.C. against the judgment and decree dated 27.02.2012 passed in A.S.No.13 of 2011 on the file of the Principal District Court, Coimbatore in confirming the judgment and decree dated 30.11.2010 passed in O.S.No.656 of 2003 on the file of the Additional Subordinate Court, Tiruppur.)
1. Aggrieved over the concurrent finding of the Court below in dismissing the suit filed for partition, the present Second Appeal has been filed.
2. The parties are arrayed as per their own ranking before the trial Court.
3. The brief facts leading to filing of this Second Appeal is as follows :
The plaintiffs and the defendants 2 to 4 are children of one Peria Rasappa Gounder. The first defendant is his wife. The suit properties belonged to the said Peria Rasappa Gounder. He died intestate on 13.04.1999. The plaintiffs are entitled to 1/6th share each. The second defendant has filed a suit for partition in O.S.No.419 of 1999. The third defendant in the present suit obtained signatures of the plaintiffs and undertook to get the share of the plaintiffs. However, the plaintiffs came to know that the defendant has not prosecuted the above suit. Hence, the suit.
4. The first defendant sailed with the case of the plaintiffs and filed a written statement supporting their case.
5. The second and third defendants are one side. It is the case of the second defendant that his father has executed an unregistered Will on 13.04.99 and died on the same night by committing suicide. It is his contention that O.S.No.419 of 1999 filed in the following circumstances :
The second defendant is the only son of his father. The relation between him and his mother and sisters were quite cordial. Apart from the immovable properties described in the plaint, his father has also left behind cash more than Rs.5 lakhs. During the 16th day ceremony, a 'family arrangement' has been reached between the defendants and his mother and sisters in the presence of M.K.Ramasamy and Mr.K.Krsihanasamy. The 'family arrangement' was finalized and the same was reduced into writing on 30.04.99 and signed by the plaintiffs and the defendants. The 'family arrangement' dated 30.04-1999 and original Will of father dated 13.04.1999 have all along been in the custody of M.K.Ramasamy. After the filing of the suit, the said Ramasamy took all efforts to compromise the matter. When his efforts failed, he handed over the original documents to the defendant on 06.09.2004. As per the 'family arrangement' the elder daughter was not given any property since his father has already given her a house site and also substantial sum of money for her daughter's marriage. The cash left behind by Peria Rasappa Gounder was shared by the other heirs of Peria Rasappa Gounder. The second plaintiff and the third and fourth defendants were also given other sums of money due from Sodambika Chit Funds, Lakshmi Vilas Bank and Karur Vysya Bank. The first defendant was given 10 cents of land in S.F.No.722 with the house thereon bearing Door No.2, apart from cash to the tune of Rs.2 lakhs. This defendant was given remaining extent of land and cash of Rs.1,50,000/-. The plaintiffs and the defendants have singed the 'family arrangement'. Since the partition was completed and it was felt that the execution and registration of a partition deed might be very expensive, it was decided that this defendant should file a suit for partition, in which all the parties would enter appearance and obtain a compromise decree. It is only in those circumstances, he has filed O.S.No.419 of 1999 on the file of the Court for partition of 1/5th share.
6. The defendants 1 to 4 entered appearance in the above suit on 08.10.1999. The fifth defendant also appeared and the suit was adjourned to 03.08.2001 for written statement of the defendants. The filing of the compromise petition was getting delayed because this defendant wanted 10 cents and house thereon, so that this defendant may get the en
