A.S.(MD).No.109 of 2015

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 25.04.2023

CORAM:

THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

A.S.(MD).No.109 of 2015

1.Selvi

2.Koundappan

3.Suresh

... Appellants/Defendants

-Vs-

Periya Ramathal (Deceased)

1.Ponnusamy

2.Ramukannu

3.Ramathal

... Respondents/Plaintiffs

PRAYER: Appeal Suit is filed under Order 41 Rules 1 and 2 r/w. Section 96 of

the Code of Civil Procedure, 1908, against the judgment and decree passed by the

learned Additional District and Sessions Court, Dindigul in O.S.No.99 of 2010,

dated 26.02.2013.

For Appellants

: Mr.M.P.Senthil

For Respondents : Mr.A.R.Sethupathy

1/12

https://www.mhc.tn.gov.in/judis

A.S.(MD).No.109 of 2015

J U D G M E N T

Aggrieved over the decree and judgment of the trial Court granting 1/5^th

share in the suit schedule properties, the unsuccessful defendants have filed the

present appeal.

2. The parties are arrayed as the rank in the trial Court.

The first plaintiff is the first wife of Periyathugayappa Gounder. The

plaintiffs 2 to 4 are the children born through the first wife of Periyathugayappa

Gounder. The first defendant is the second wife of the said Thugayappa Gounder

and the defendants 2 and 3 are the children born through the second wife of the

said Thugayappa Gounder. Originally, the suit properties belonged to one

Nalliappa Gounder, who is the father of the said Thugayappa Gounder. On

14.07.1976, there was a partition between Nalliyappa Gounder and his two sons

viz., Periyathugayappa Gounder and Chinnathugayappa Gounder along with the

plaintiffs 2 and 3, wherein the plaintiffs 2 and 3 were allotted 2/3^rd share. In the

suit schedule properties, remaining 1/3^rd share was allotted to Periyathugayappa

Gounder. The said properties have been allotted to Periyathugayappa Gounder

2/12

https://www.mhc.tn.gov.in/judis

A.S.(MD).No.109 of 2015

and his two sons, the plaintiffs 2 and 3 jointly. The said Periyathugayappa

Gounder had developed contact with the first defendant, during the existence of

first marriage. Though there was no valid marriage between them, the defendants

2 and 3 were born through the second wife. Therefore, they are only elder sons

and each entitled to 1/18^th share. The plaintiffs are entitled to the remaining share.

Hence, they claimed a preliminary decree for partition.

3. It is the case of the defendants that the said Thugayappa Gounder

married the second wife legally and the defendants 2 and 3 are the sons of the

said Thugayappa Gounder through the second wife. The said Thugayappa

Gounder has sold 1/3^rd share in favour of the first defendant on 31.08.1982. From

the date of purchase, the defendants are enjoying the said properties. The

plaintiffs have filed a suit in O.S.No.821 of 1982 before the District Munsif

Court, Palani. During the pendency of the suit, there was a compromise entered

between the parties, followed by the release deed executed by the plaintiffs

relinquishing their 2/3^rd share for a total sale consideration of Rs.7,500/- in favour

of Periyathugayappa Gounder. Having executed such a release deed, now the suit

came to be filed after 24 years. Hence, opposed the suit.

3/12

https://www.mhc.tn.gov.in/judis

A.S.(MD).No.109 of 2015

4. Based on the above pleadings, the trial Court has framed the

following issues:

(i) Whether the plaintiffs are entitled to 16/18^th share in the suit schedule

properties?

(ii) To what other relief they are entitled to?

5. On the side of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A1

to A7 were marked and on the side of the defendants, D.Ws.1 to 3 were examined

and Exs.B1 to B5 were marked.

6. Based on the evidence, the trial Court has granted a preliminary

decree in respect of the 2/3^rd share and granted a decree for 3/5^th share to the

plaintiffs 2 to 4. Challenging the same, the present appeal came to be filed by the

defendants.

7. The main contention of t