Advocates:
['M/S R KARTHIKEYAN', '', 'R BHARATHIDASAN', 'M/S N MANOKARAN', '', 'R NIRESH KUMAR', 'N C ASHOK KUMAR', 'M/S C JAGADISH', 'IN AWAIT MP']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 22.02.2022

CORAM:

THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH

SA.No.34 of 2013

1. R.Nagarajan

2. N.Annalakshmi

... Appellants/Defendants 5 & 6

Vs.

1. A.Ramasamy Gounder

2. A.Nallaiya Gounder

... 1&2 Respondents/Plaintiffs

3. P.Anbu Ezhil

4. C.Ayyavoo

5. T.A.Natarajan

6. Pavayammal

... 3 to 6 Respondents/ 1 to 4 Defendants

7. N.Dhanasekaran

8. V.Selvam

(R7 & 8 Impleaded vide order 28.07.2015 in

MP No.2/13 in SA No.34 of 2013

.. Respondents 7 &8

Respondents 3 to 6 – Exparte

Prayer:

Second Appeal filed under section 100 of the Code of

Civil Procedure against the judgment and decree of the learned

Principal District Judge, Namakkal dated 24.11.2012 made in

A.S.No.12 of 2012 reversing that of the learned Subordinate

Judge, Rasipuram dated 06.02.2012 made in O.S.No.185 of 2008 (OS

No.282/2006,Sub Court, Namakkal).

For Appellant :

Mr.R.Karthikeyan

For Respondents:

Mr.C.Jagadish for R1, 2, 6

Mr.N.Manokaran for R7 and R8

JUDGMENT

The defendants 5 and 6 are the appellants in this

second appeal.

2. The respondents 1 and 2 / plaintiffs filed a suit

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seeking for the relief of partition and for allotment of 1/4^th

share in the suit property.

3.

The case of the plaintiffs is that they are the

brothers of the defendants 3 and 4. The 1^st defendant is the son

of the 4^th defendant and the 2^nd defendant is the agreement holder

from the 1^st defendant. According to the plaintiffs, the suit

properties belonged to one Athayammal. She is none other than

the sister of the plaintiffs and the defendants 3 and 4. The

said Athayammal executed a Will dated 10.09.1971 bequeathing

the suit properties to the plaintiffs and Defendants 3 and 4 to

be enjoyed by them equally after her life time.

4.

The further case of the plaintiffs is that the 1^st

defendant in a clandestine manner managed to get a Sale deed

executed in his favour by Athayammal on 26.07.2006. According to

the plaintiffs, the sale deed was obtained under suspicious

circumstances and four days prior to the death of the said

Athayammal. Thereafter, the 1^st defendant entered into a Sale

agreement with the 2^nd defendant.

5.

The plaintiffs took a stand that the sale deed is

fraudulent and there was already a registered Will executed by

the said Athayammal and based on the said Will, the plaintiffs

sought for the relief of partition and for allotment of 1/4^th

share to each of the plaintiffs.

6.

The 1^st defendant took a stand that on the execution of

the sale deed in his favour by Athayammal, the Will no longer

survives and hence, the plaintiff is not entitled for any share

in the suit property. The 1^st defendant also took a stand that

the sale deed executed in his favour by Athayammal was not put

to challenge at any point of time and hence, sought for the

dismissal of the suit.

7.

The Trial Court on appreciation of the oral and

documentary evidence, came to a conclusion that the Will

executed by Athayammal automatically seized to exist on the

execution of the sale deed in favour of the 1^st defendant and

since this Sale deed has not been challenged, the relief sought

for by the plaintiff cannot be granted and accordingly, the suit

came to be dismissed.

8.

The plaintiff filed an appeal before the Principal

District Judge, Namakkal, and the Lower Appellate Court by a

judgment and decree dated 24.11.2012 allowed the appeal and set

aside the judgment and decree of the Trial Court. Thereby, the

suit was decreed as prayed for. Aggrieved by the same, the

present second appeal has been filed before this Court.

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9.

This Court framed the following substantial questions

of law :-

“1.

Whether the Lower appellate Court is right in

holding that the suit, in the absence of prayer for

cancellation of the sale deed da