IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.06.2024 CORAM:

THE HONOURABLE MR.JUSTICE V.SIVAGNANAM S.A.No.959 of 2012 and M.P.No.1 of 2012 Bhuvaneswari ... Appellant (sole appellant declared as major &

guardianship discharged vide order of this Court, dated 09.12.2023, made in M.P.Nos.1 & 2 of 2013 )

Vs.

1. J. Kaliaya Perumal

2. Sasikumar 3. Tamilarasi

4. Arjunan ... Respondents PRAYER: Second Appeal filed under Section 100 of C.P.C. against the judgment and decree dated 20.03.2012 made in A.S.No.36/2010 on the file of the Sub Court, Kallakurichi, confirming the decree and judgment dated 16.04.2010 made in O.S.No.240 of 2006 on the file of the II Additional District Munsif Court, Kallakurichi.

For Appellant : Mr. M. Devendran For Respondents : Mrs. K.S.Sundar, for Mr.K.Veeramani

J U D G M E N T

Second Appeal has been filed against the judgment and decree passed in A.S.No.36 of 2010, dated 20.03.2012 on the file of the Sub Court, Kallakurichi, confirming the judgment and decree passed in O.S. No.240 of 2006, dated 16.04.2010, on the file of the II Additional District Munsif Court, Kallakurichi.

2. For the sake of convenience, the parties are referred to as per their rankings in the Trial Court.

3. The plaintiff in the suit in O.S.No.240 of 2006 on the file of II Additional District Munsif Court, Kallakurichi, is the appellant in this Second Appeal.

4. The fact of the case is that the plaintiff is the daughter of the second defendant and the grand daughter of the first defendant. The suit properties consists of ancestral properties and also properties purchased out of the income from the ancestral properties. Hence, the defendants 1 and 2 are entitled to 1/2 share each. The plaintiff is entitled to 1/4 share in the half share of the 2^nd defendant. The marriage between the plaintiff's mother/next friend,viz., Kalaiselvi and the 2^nd defendant was dissolved by an order of the learned Subordinate Judge, Kallakurichi in HMOP No.32/99 dated 18.07.2003 and the same was also confirmed in the appeal, which was filed by the Kalaiselvi, in CMA No.17 of 2024 before the Fast Track Court, Kallakurichi. The 3^rd defendant is the sister of the 2^nd defendant and daughter of the 1^st defendant and she has no right or share in the suit properties. But in order to avoid any technical difficulty, she was impleaded as party to the suit. During the pendency of the suit, the 4^th defendant claims to have purchased suit items 1 to 3 from the 2^nd defendant under the Sale Deed dated 28.03.2008. The said sale has been made collusively with an ulterior motive and the same is not valid and it will not bind the plaintiff. It is also hit by lispendence. In order to have a binding decree, the 4^th defendant is impleaded as a party to the suit. On 01.03.2006, though the plaintiff's mother/next friend orally demanded the defendants to divide the suit properties by metes and bounds and to allot the plaintiff's share thereon, the defendants gave evasive replies. Hence, the plaintiff is constrained to file the suit and the plaintiff is also entitled to future income of her share in the suit properties.

5. The 2nd defendant filed written statement and additional written statement and contested the suit stating that the averments made in the plaint are false except those are admitted by the defendant. The plaintiff's mother/next friend, Kalaimathi, already filed a case for maintenance and received a sum of Rs.44,000/- as maintenance and also received a sum of Rs.1,60,000/- as life maintenance for herself and the plaintiff. Out of which, Rs.1,00,000/- fixed deposit was made in the name of the plaintiff. In CMP No.1100 of 2004 , both the plaintiff and her mother/next friend, Kalaimathi, filed a memo stating that they will not file any suit. However, later they filed the suit only with an intention to harass the 2nd defendant and his family members and prays for dismissal of the suit.

6. The written statement and the additional written statements filed by the 2nd defendant was ad