Advocates:
['M/S S N NARASIMHULU', '', 'KJ SIVAKUMAR', 'M/S G THANGAVEL', '', 'G RAJA', 'E SIVANANDAN']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 21.03.2022

CORAM

THE HONOURABLE MRS.JUSTICE R.HEMALATHA

S.A.NO.198 OF 2010

AND

M.P.NO.1 OF 2010

Pankajam

... Appellant

.Vs.

Andallammal (deceased)

1. Dhakshna Nadar Sangam,

No.26, Mettu Street,

Ayanavaram,

Chennai - 600 023.

... Respondents

PRAYER:-

Second Appeal filed under Section 100 CPC, 1908 against the

decree and judgment dated 20.04.2009 passed in A.S.No.660 of

2007, on the file of the V Additional City Civil Court, Chennai,

upholding the decree and judgment dated 31.01.2006 passed in

O.S.No.3479 of 1999, on the file of the XII Assistant City Civil

Court, Chennai.

For Appellant

: Mr.S.N.Narasimhulu

For Respondent : Mr.G.Thangavel

JUDGMENT

The unsuccessful plaintiff before both the courts below has

filed the present second appeal.

2. For the sake of convenience, the parties are referred to

as per their ranking in the trial court and at appropriate

places, their ranking in the present appeal would also be

indicated.

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3. The plaintiff Pankajam filed a suit for partition of the

suit property into two equal shares and to allot one share to

her. She further prayed for permanent injunction restraining the

first defendant Tmt.Andal Ammal (since deceased) from alienating

the suit property to a third party and for costs. The suit

property is described in the plaint schedule as a house bearing

Door No.166, Mettu Street, Ayanavaram, Chennai 600023.

4. The case of the plaintiff in nutshell is as follows:

The plaintiff is the wife of Late. Subramani who is the son

of Late.Indirani Ammal. Indirani Ammal is the daughter of

Late.Dhamodara Mudaliar born through his third wife. Damodhara

Mudaliar executed a registered Will (Ex.A1) dated 20.10.1939 in

favour of his three sons born through his two wives. As per the

Will, the suit property should be divided into three equal

shares by his three sons. There was also a condition attached to

the Will that Indirani Ammal's interest should be protected and

she must be paid a sum of Rs.200/- by the sons of Dhamodara

Mudaliar. Indirani Ammal was residing in a portion of the suit

property. The first defendant forcefully evicted Indirani Ammal

and her family from the suit property. They did not pay a sum of

Rs.200/- as mentioned in the Will (Ex.A1). The plaintiff,

therefore, issued a legal notice dated 13.03.1998 (Ex.A2) to the

defendant calling upon the defendant to divide the suit property

into two equal shares and to allot one such share to her. Though

the said notice was received by the first defendant, as is

evidenced by the postal acknowledgment card (Ex.A4), the

defendant did not send any reply and did not also come forward

to partition the suit property. Hence, the suit.

5. The suit was resisted by the defendants 1 & 2 on the

following grounds :

i. The father-in-law of the first defendant Late.Dhamodara

Mudaliar executed a registered Will (Ex.A1) dated

20.10.1939 bequeathing the suit property in favour of his

three sons. A sum of Rs.200/- was directed to be paid to

Indirani Ammal, daughter of Late.Dhamodara Mudaliar by

the beneficiaries of the Will. However, though Indirani

Ammal was offered a sum of Rs.200/- she refused to

receive the same. Therefore, question of paying the said

amount to the legal heirs of Indirani Ammal (plaintiff)

would not arise.

ii.A suit for partition was filed in O.S.No.5832/1976

before the VI Assistant Judge, City Civil Court, Chennai,

for partition of the properties of Damodara Mudaliar by

the three brothers and the suit property was allotted to

the share of Natesa Mudaliar, the husband of the first

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defendant, who executed a settlement deed in favour of

his wife Andal Ammal (first defendant). In the settlement

deed, it is clearly intimated that Indirani Ammal