IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 20.12.2021

PRONOUNCED ON : 25.01.2022

CORAM

THE HON'BLE MR. JUSTICE G.CHANDRASEKHARAN

S.A.NO.1064 OF 2019

AND C.M.P.NO.22879 OF 2019

Nirmala

...Appellant/

Plaintiff

Vs.

Duraisamy

...Respondent/

Defendant

Prayer:-

Second Appeal is filed under Section 100 of the Code of

Civil Procedure, to set aside the judgment and decree of the

lower Appellate Court in rejecting the relief for partition in

A.S.No.33 of 2014 dated 11.02.2019, on the file of the Principal

District Court, Namakkal, confirming the judgment and decree

dated 05.04.2014 passed in O.S.No.57 of 2010 on the file of the

Sub Court, Rasipuram.

For Appellant

: Mr.C.Jagadish

For Respondent : Mr.S.Sounther

JUDGMENT

This Second Appeal is directed against the judgment and

decree of the learned Principal District Judge, Namakkal in

A.S.No.33 of 2014, setting aside the dismissal judgment of the

trial Court by partly decreeing the suit in respect of

declaratory relief and confirming the dismissal of the partition

relief claimed.

https://hcservices.ecourts.gov.in/hcservices/

2.

The appellant/plaintiff filed a suit for declaration

that the final decree passed in O.S.No.36 of 2006 in respect of

suit properties is not binding on the appellant and for

partitioning the suit properties into two shares and allotting

the portion in Survey No.123/1B in occupation of the appellant

as her share. The suit properties situate in Seerapalli village,

Rasipuram taluk. The deceased first defendant is the father of

the appellant and respondent. There was a partition in respect

of suit properties between defendants and first defendant's

brother Chinna Gounder, on his behalf and on behalf of his minor

son. In the said partition 'A' schedule properties were allotted

to defendants 1 and 2 and Chinna Gounder was allotted 'B'

schedule property. After the partition, first defendant

purchased well and land annexed with the well in Survey

No.122/1. Purchased half share in well from one Palaniappa

Viagara. The rest was allotted to defendants 1 and 2 in the

partition. Since, the property from Palaniappa Viagara on

31.12.1984 was purchased from the income derived from ancestral

property, the property purchased under this sale deed is also a

joint family property. Appellant's marriage was conducted on

20.02.1988. On 11.09.1991, first defendant executed a settlement

deed to an extent of 45 cents in Survey No.118/1 and an extent

of 6 cents available at Survey No.123/1 to the appellant and the

appellant is enjoying this property. Then as on 04.03.1999,

first defendant executed a settlement deed in respect of 60

cents in Survey No.122/8, 44 cents in Survey No.122/9, 66 cents

in Survey No.123/1 , 30 cents in Survey No.123/2, 1/4 share in

the well and electric motor in Survey No.122/1. Appellant is

also enjoying these properties. Since, there was a dispute with

regard to taking water from common well, appellant filed a suit

in O.S.No.57 of 2006 on the file of District Munsif Court,

Rasipuram. This suit was dismissed on 30.08.2007. It was pleaded

in the suit by the respondent that the settlement in favour of

appellant is not true. The suit was dismissed for the reason

that appellant has not established the possession and title.

There was a suit between the defendants in O.S.No.36 of 2006 and

that resulted in passing compromise decree. The suit filed in

O.S.No.36 of 2006 without impleading the appellant is not

correct. The judgment in O.S.No.36 of 2006 was passed without

considering the amendments brought under Act 39/2005 in Hindu

Succession Act 1956. Appellant is entitled to 1/3 share in the

suit properties and suppressing her right in claiming 1/3 share

in suit properties, the suit in O.S.No.36 of 2006 was filed and

therefore the judgment and decree in O.S.No.36 of 2006 an