Advocates:
['M/S C MUNUSAMY', '', 'L P SHANMUGASUNDARAM', 'M/S C PRABAKARAN', '', 'M VINITH']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 16.11.2021

PRONOUNCED ON : 22.02.2022

CORAM:

THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN

AS.No.950 of 2015

(Through Video Conferencing)

1.Malliga

2.Srinivasan

3.Nirmala

4.Dinesh Kumar

...Appellants/Defendants

Vs.

Durga Devi

...Respondent/Plaintiff

Prayer:-This Appeal Suit has been filed, Section 96 of CPC,

against the judgement and decree, dated 04.08.2015, made in

OS.No.107 of 2014 by the Principal District Judge, Krishnagiri.

For Appellant

:

Mr.C.Munusamy

For Respondent

:

Mr.C.Prabakaran

JUDGEMENT

1.This Appeal Suit has been filed, by the Defendants, against

the judgement and decree, dated 04.08.2015 made by the

Principal District Judge, Krishnagiri, in OS.No.107 of 2014,

filed for partition of the suit properties into five equal

shares and to allot 1/5^th share to the Plaintiff and for

separate possession and for injunction.

2.The case of the Plaintiff is that the 1st Defendant is the

mother and the Defendants 2 and 4 are brothers and the 3rd

Defendant is sister of the Plaintiff. The suit properties are

the joint family and ancestral properties and the Plaintiff

and the Defendants are in joint possession and enjoyment of the

same. The marriage of the Plaintiff with one Prabakaran was an

inter caste marriage. The father of the Plaintiff died on

29.07.2009. The name of the Plaintiff was not included in the

legal heirship certificate obtained by the Defendants. The

Plaintiff had been demanding for partition of the properties.

Even in the panchayat held in the Village, the Defendants did

not come forward for partition. Since the Defendants are

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

attempting to alienate the suit properties, the suit had been

filed, seeking the reliefs, as stated above.

3.The case of the Defendants is that the description of the suit

property is not correct and the relationship between the

parties is admitted. The husband of the 1st Defendant,

Murugesan died on 29.07.2009 and during his life time, the

Plaintiff contracted an inter-caste marriage with one

Prabhakaran, in 2007, in spite of protest raised by the family.

Prior to her marriage, in the panchayat held in the Village, a

family arrangement took place between the parties, allotting

the suit property in favour of the Defendants and it was agreed

that the Defendants should take care of the parents and hence,

the Plaintiff is not entitled to claim partition of the same.

Suppressing the said family arrangement, the suit had been

filed. If for any reason, the court comes to the conclusion

that the Plaintiff is entitled to any share in the properties,

the Plaintiff will have to share the above said liabilities

also. The suit is bad for non-joinder of the necessary parties

and properties. The plaintiff is barred from claiming partition

in respect of the house properties, as per the provision of

Section 23 of Hindu Succession Act. In such circumstances, the

suit is liable to be dismissed.

4.In the additional written statement, it is stated that after

filing of the written statement, the description of the suit

property was amended, by way of an interlocutory application

and survey numbers are wrongly mentioned and hence, the suit is

liable to be dismissed.

5.Before the Trial Court, on the side of the Plaintiff, Ex.A1 to

Ex.A3 were marked and PW.1 was examined. On the side of the

Defendants, DW.1 was examined. The Trial Court had decreed the

suit, as prayed for. Aggrieved against the same, this Appeal

Suit has been filed by the Defendants.

6.This Court heard the submissions of the learned counsel on

either side.

7.The learned counsel for the Appellant has submitted that the

Appellants and the Respondent had already made an oral

partition in respect of the suit properties and the court below

erred in not considering the said fact and erroneously dec