C. Gurusami vs Nagajothi - 2022 Supreme(Mad) 3872

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Mad) 3872

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
M.S.RAMESH, N.ANAND VENKATESH, JJ.
C.Gurusami – Appellant
Versus
Nagajothi – Respondent
A.S(MD)No.65 of 2014 and M.P(MD)No.1 of 2014
Decided on : 10-11-2022

Advocates:
Advocate Appeared:
For the Appellants : Mr.M.Vallinayagam, Senior Counsel for Mr.D.Nallathambi
For the Respondents: Mr.D.Saravanan, Mr.G.Prabhu Rajadurai, Mrs.N.Krishnaveni, Learned Senior Counsel for Mr.V.Balaji, Mr.V.Kishore Kumar

Headnote:
Civil Procedure Code, 1908 - Section 96 - Hindu Succession Act, 1956 - Appeal is directed against judgment and decree of trial Court, on file of VI Additional District Court, , whereby a preliminary decree of partition of 1/6th share in suit property was decreed in favour of plaintiff and 1/6th share each in favour of defendants 2 to 5 and 15 to 17 - Held, It is needless to point out that Section 30 of Hindu Succession Act, 1956, clearly laid down that any Hindu may dispose of by Will or other testamentary disposition any property, which is capable of being so disposed of by him - Defendants 11 to 13 claim title over 3000 sq. ft., in suit property by placing reliance on an acceptance deed, wherein they claim that there was a sale deed executed between them and plaintiff herein - Now that court have held that plaintiff is not adopted daughter of and that, she has no legal right or title over suit property and further that first defendant herein is admittedly adopted son who had sold property to defendants 7 to 10, claim of title by these defendants through an acceptance deed allegedly executed by plaintiff, is sham and nominal and has no legal binding - Appeal Allowed.

JUDGMENT :

M.S.RAMESH, J

PRAYER: Appeal filed under Section 96 of Civil Procedure Code, against the judgment and decree dated 04.02.2014 passed in O.S.No.551 of 2004 on the file of the Additional District Court No.6, Madurai.

The present appeal is directed against the judgment and decree of the trial Court, dated 04.02.2014 in O.S.No.551 of 2004 on the file of the VI Additional District Court, Madurai, whereby a preliminary decree of partition of 1/6th share in the suit property was decreed in favour of the plaintiff and 1/6th share each in favour of the defendants 2 to 5 and 15 to 17.

2. For the sake of convenience, the parties to the appeal are addressed according to their status in the original suit.

3.1. The case of the plaintiff is that the suit property originally belonged to one Thiru.late.N.Kannayiram Pillai, who had purchased the same through a registered sale deed dated 15.07.1981. The wife of Thiru.late.Kannayiram Pillai, had predeceased her husband. Thiru.late.Kannayiram Pillai, subsequently expired, without any issues.

3.2. During his lifetime, Thiru.late.Kannayirampillai had adopted the first defendant herein on 01.01.1983, who is Thiru.late.Kannayiram Pillai wife's brother's son. Apart from the first defendant, Thiru.late.Kannayiram Pillai had also adopted the plaintiff as their daughter in the year 1959, as per Hindu Rites and Customs. The plaintiff's marriage was conducted by Thiru.late.Kannayirampillai by referring to her as his ''Abimaana Puthalvi” in the marriage invitation. The plaintiff continued to live in the suit property during the pendency of the suit. While the defendants 2, 4 and 5 are the blood brothers of the plaintiff, the third defendant is her blood sister. By way of a family arrangement, the plaintiff and the defendants 1 to 5 and a predeceased brother of the plaintiff, had entered into a family arrangement on 09.05.1996, whereby they had agreed that the plaintiff and the first defendant would be entitled to equal share, which they are willing to forego in favour of the other defendants and that the suit property would be sold in open auction and the sale proceeds shall be divided equally among the plaintiff and the defendants 1 to 5, as well as her predeceased brother. In view of the death of the plaintiff's brother, the plaintiff and the defendants 1 to 5 are entitled to 1/6th share each in the suit property.

3.3 The first defendant in his additional written statement, has denied the adoption of the plaintiff. He further reiterated the statement in the plaint that the first defendant was adopted by Thiru.late.Kannayiram Pillai and had brought him up as his own son and strongly denied the plaintiff's adoption. Thiru.late.Kannayiram Pillai had also executed a Will, dated 11.12.1988, bequeathing the suit property in favour of the first defendant. The defendants 7 to 10 had purchased the suit property from the first defendant through a registered sale deed for a valid sale consideration and hence, they are the real owners of the suit property. The claim of the plaintiff that the suit property was sold to the defendants 11 to 13 by a Power Agent of the plaintiff and the defendants 2, 4 and 5, is sham and nominal one and hence, it is not binding upon the first defendant. The alleged deed of Power of Attorney was not acted upon and had not come into operation at all and hence is a fraudulent document.

3.4. The defendants 2 and 4 in their written statement have denied the adoption of the plaintiff, as well as the first defendant, by Thiru.late.Kannayiram Pillai and claimed that the first defendant had no legal right to alienate the suit property in favour of the defendants 7 to 10. These defendants claim 1/6th share each in the suit property in view of a family arrangement between the plaintiff and the defendants 1 to 5.

3.5. The third defendant in her written statement claimed that the plaintiff and the defendants 1 to 5 were all adopted by late.Kannayiram Pillai and therefore, they are also entitled for 1