AS.No..483/2011

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 14.10.2022

CORAM

THE HONOURABLE MR. JUSTICE S.S.SUNDAR

AND

THE HONOURABLE MRS. JUSTICE N.MALA

AS.No.483/2011

P.P.Mathivanan

..

Appellant

/ Defendant

Versus

1.P.P.Jayalakshmi

2.P.P.Sasikala

3.P.P.Malarkodi

4.P.P.Deepa

.. Respondents

/

Plaintiffs

Prayer:- Appeal Suit filed under Order 41 Rule 1 and 2 read with Section

96 of CPC against the judgment and decree made in OS.No.6/2010 on the

file of the learned Principal District Judge at Dharmapuri dated 11.04.2011

and dismiss the said suit.

For Appellant

:

Mr.V.Ayyadurai

Senior counsel for

Mr.V.B.Perumal Raj

For Respondents

:

Mr.P.Mani

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AS.No..483/2011

JUDGMENT

[Judgment of the Court was delivered by S.S.SUNDAR, J.,]

(1)

The defendant in the suit in OS.No.6/2010 on the file of the

Principal District Court, Dharmapuri, is the appellant in the above

Appeal Suit.

(2)

The respondents in the above Appeal as plaintiffs, filed the suit in

OS.No.6/2010 for partition and separate possession of 4/5^th shares

in the suit schedule properties and for consequential reliefs.

(3)

The appellant and the respondents are brother and sisters.

(4)

The case of the plaintiffs in the plaint is that the suit properties are

the joint family properties of their father by name Thiru.Pandu and

that their father also purchased one of the items of the suit schedule

properties in S.NO.488/3 [an extent of 70 cents] in Kuppur Village

out of the income from the joint family properties. It is admitted

that the father of plaintiffs and appellant/defendant died on

25.08.2007 leaving behind the plaintiffs and the defendant who is

the brother of plaintiffs, as his legal heirs. It is admitted that their

mother predeceased their father. It is also alleged in the plaint that

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AS.No..483/2011

the defendant who is only entitled to 1/5^th share, swindled the

income from the suit properties and evaded to divide the properties

among all the heirs of late Thiru.Pandu.

(5)

The suit for partition was defended by the defendant by filing a

written statement on the ground that their father had spent several

lakhs of rupees for the education of plaintiffs and to give them in

marriage. It is also contended by the defendant/appellant that a

sum of Rs.17 lakhs was spent for the 1^st respondent/1^st plaintiff and

a further sum of Rs.15 lakhs was spent on the 2^nd respondent / 2^nd

plaintiff. Stating that a sum of Rs.19 lakhs was spent on the 3^rd

respondent / 3^rd plaintiff and a sum of Rs.4 lakhs was spent for the

4^th respondent / 4^th plaintiff to complete her Diploma in Tteacher

Training, the defendant/appellant pleaded that the plaintiffs have no

legal or moral grounds to seek partition of the suit properties.

(6)

The Trial Court, after framing a specific issue as to whether the

defendant had spent for the education of plaintiffs or their marriage,

found that no evidence is adduced by the defendant to support his

case that he or his father had spent several lakhs for the education

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AS.No..483/2011

and marriage of the plaintiffs. Holding that the suit properties are

self-acquired properties of Thiru.Pandu and that the properties are

not partitioned, the Trial Court held that the plaintiffs are entitled to

get 4/5^th shares in the suit properties. Even though the Trial Court

observed in one place that the suit properties are proved to be

ancestral properties, irrespective of the character of the properties,

the plaintiffs are entitled to 4/5th shares in respect of all properties

of Thiru.Pandu by virtue of 2005 Amendment to Hindu Succession

Act. Aggrieved by the judgment and decree of the Trial Court, the

defendant has preferred the above the Appeal Suit.

(7)

Heard the submissions of the learned Senior counsel appearing for

the appellant/defendant and the learned counsel appearing for the

res