S.A.(MD) No.325 of 2011

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Judgment Reserved On

31.01.2023

Judgment Pronounced On

20.02.2023

CORAM

THE HONOURABLE MR.JUSTICE S.SOUNTHAR

S.A.(MD) No.325 of 2011

Leelavathi

.. Appellant/Respondent/

Plaintiff

-vs-

Chellaswami

.. Respondent/2^nd Appellant/

2^nd Defendant

Prayer: Appeal filed under Section 100 of Civil Procedure Code to set aside

the judgment and decree dated 25.01.2010 made in A.S.No.24 of 2006 on

the file of the District Court, Kanniyakumari reversing the judgment and

decree dated 13.04.2006 made in O.S.No.211 of 1998 on the file of the First

Additional Sub Court, Nagercoil.

For Appellant

:

Mr.N.Vallinayagam

Senior Counsel

assisted by

Mr.T.Antony Arulraj

For Respondent

:

Mr.S.Meenakshi Sundaram

Senior Counsel

assisted by Mr.M.Sengu Vijay

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S.A.(MD) No.325 of 2011

JUDGMENT

The plaintiff in the suit is the appellant. The suit is for partition of

appellant's 1/3^rd share over the suit property. The suit was partly decreed in

respect of Items 1, 3 and portion of 4^th Item viz., 25½ cents. On appeal filed

by the defendants, the findings of the trial Court were reversed and the suit

was dismissed in its entirety. Aggrieved by the same, the unsuccessful

plaintiff has come up by way of this second appeal.

Plaint averments:

2.1. According to the appellant/plaintiff, the suit properties are the

ancestral properties of the appellant and the respondent. Originally, the suit

was filed by the appellant against her mother and brother viz., the

respondent. Pending first appeal, the mother died and the appellant and

respondent were recorded as legal representatives of the deceased mother.

2.2. As per the plaint averments, the properties were managed by the

father of the parties, viz., Rathinasamy and he died intestate on 29.01.1998.

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S.A.(MD) No.325 of 2011

Accordingly, the appellant claims that after death of the father, the

properties devolved on her and the original defendants in the suit viz., the

mother and the respondent herein.

2.3. It was further averred that the appellant got married in the year

1982 and at the time of marriage, the appellant was provided with some

jewels and a sum of Rs.40,000/- and no property was given to her towards

her share in the joint family properties. It was further averred in the plaint

that after death of the father, the respondent herein started acting

detrimental to the interest of the appellant and in spite of demands made by

her for amicable partition, the respondent failed to respond and hence, she

was constrained to file the suit for partition claiming her 1/3^rd share in the

suit property.

Averments contained in the written statement:

3.1. The respondent along with her deceased mother filed a written

statement and contested the suit on the ground that the appellant was not in

joint possession of the suit property subsequent to her marriage on

03.02.1982. It was also pleaded by the respondent that the appellant had

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S.A.(MD) No.325 of 2011

executed a release deed relinquishing her share in the joint family properties

on 18.01.1982. As far as the character of the suit schedule properties is

concerned, the respondent pleaded that Item-1 of the suit property was

purchased by his father Rathinasamy on 14.11.1951 and hence, it ought to

be treated as his self-earned property. He pleaded that Items-2 and 4 were

ancestral properties of his own and it cannot be treated as ancestral

properties of the appellant. It was further pleaded that Item-3 was

purchased by utilising the sale proceeds of ancestral property in Item-2.

3.2. It was further pleaded by the respondent that during the lifetime

of his father, Rathinasamy, he executed a Will dated 07.03.1996

be