Advocates:
['M/S P JAGADEESAN', '', 'M AHMED ZUBER', 'S SUNDAR RAJ', 'M/S J RAMAKRISHNAN', '', 'FOR R TO R']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 13.11.2018

CORAM:

THE HON'BLE MR.JUSTICE N.SESHASAYEE

S.A.No.59 of 2008

and

M.P.Nos.1,2 and 3 of 2014

Narayanasamy

...Appellant/Respondent/Plaintiff

Vs

1.Ramasamy

2.Munusamy @ Mani

3.Alamelu

4.Thanammal

...Respondents/Appellants/Defendants

Prayer:- Second Appeal filed under Section 100 of Civil

Procedure Code against the Judgment and Decree on the file of

the District Judge, Tiruvannamalai made in A.S.No.26 of 1999,

dated 17-10-2006 reversing the Judgment and Decree on the file

of the Additional District Munsif No.1, Tiruvannamalai in

O.S.No.158 of 1996 dated 03.02.1999.

For Appellant

: Mr.P.Jagadeesan

For Respondents: Mr.P.Dinesh Kumar for

Mr. J.Ramakrishnan

JUDGMENT

The plaintiff, who has been successful before the trial

Court in a suit for partition that he instituted in O.S.No.158

of 1966, but suffered a decree dismissing the suit before the

first Appellate Court in A.S..No.26 of 1999 has come forward

with this Appeal challenging the same. Parties would be

referred to by their rank before the trial Court.

2. The third defendant is the mother of the plaintiff,

defendants 1, 2 and 4. The fifth defendant is the wife of the

second defendant. The suit property is described as a plot of

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

land with a residential house, measuring 4,095 sq.ft. The case

of the plaintiff is that he along with defendants 1, 2 & 4 and

their father Perumal Naidu constituted a coparcenary, that the

coparcenary possessed agricultural properties, that the suit

property was purchased in the name of the first defendant, he

being the eldest coparcener under Ext A-1=Ext.B-5, dated

12.02.1957, from and out of the income of the other coparcenary

properties. This property, hence, partakes the character of a

joint family property in which the plaintiff is entitled to 5/16

shares.

3. All the defendants contested the suit, and the second

defendant has filed a written statement, wherein it is primarily

contended that the suit property is a self acquisition of the

first defendant, that it has always been considered as his

property, and has been treated thus, that under a sale deed

dated 22.12.1964, the first defendant sold a portion of the

property that he had purchased under Ext.A-1 to a certain

Subramaniaya Gounder (who is not a party to the present suit)

and the remaining portion was sold in two parts, first part on

27.01.1991, under Ext. A-1 to the second defendant, and

subsequently, on 27.03.1991, the first defendant sold the

balance portion to the 5^th defendant, the wife of the second

defendant.

4.1 The dispute went for trial and before the Trial Court

and both sides adduced oral as well as documentary evidence.

For the plaintiff, he examined himself as P.W.1, whereas, the

first defendant had examined himself as D.W.1. The crucial

documentary evidence that are relied on by rival sides are: (a)

For the plaintiff, Ext A-1, the sale deed in favour of the first

defendant; (b) Exts A-2, A-3 & A-4, all dated 23.07.1958, which

Perumal Naidu and his sons had executed in favour of some

strangers. The sale deed under which a portion of the suit

property was sold by the first defendant to Subramaniaya Gounder

was marked Ext A-5. For the Defendants, Exts. B-6 and B-14

are marked, which respectively are the sale deeds, under which,

the first defendant had sold separate portion of the suit

property to the second defendant and his wife, the fifth

defendant.

4.2 On appreciating the evidence, the trial Court has

decreed the suit and in its judgment, the trial Court has held

that the evidence on record has disclosed the existence of

family properties and based on the said finding, it drew an

interference that the sale consideration for the purchase of the

suit property under E