SA.No.98 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 16.02.2023

CORAM

THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN

CMP.No.98 of 2023

Valli

..Appellant

Vs.

1.P.Thangavel

2.P.Easwaran

3.Kamala

4.Unnamalai

5.Manickam

..Respondents

Prayer: Second Appeal filed under Section 100 of Civil Procedure Code,

against the Judgment and Decree dated 09.04.2010 made in A.S.No.35 of 2009

on the file of the Additional District Judge, Salem, (Fast Track Court No.2,

Salem), confirming the Judgment and Decree dated 30.04.2009 made in

O.S.No.162 of 2002 on the file of the Additional Sub-Judge, Salem.

For Appellant

: Mrs.Sasikala Ramadoss

For Respondents

For R4

: Mr.P.Sesubalan Raja

JUDGMENT

This Second Appeal has been filed as against the judgment and decree

dated 09.04.2010 passed in A.S.No.35 of 2009 on the file of the Additional

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SA.No.98 of 2023

District Judge, Salem, (Fast Track Court No.2, Salem) confirming the judgment

and decree dated 30.04.2009 passed in O.S.No.162 of 2002 on the file of the

Additional Sub-Judge, Salem, thereby dismissing the suit filed for partion.

2. The appellant is the plaintiff and the respondents are the defendants in

the suit filed for partition.

3. For the sake of convenience, the parties are referred to as per their

ranking before the Trial Court.

4. The case of the appellant is that the suit properties belong to the

appellant and the respondents and that they have been in joint possession and

enjoyment of the same. The suit properties are ancestral in nature and it had

been allotted to Palani Gounder and his family members by a registered

Partition Deed dated 07.03.1966. Thereafter, the suit property was in common

and joint possession and enjoyment of the plaintiff and the defendants 1 to 5.

The 4^th defendant is the father of the plaintiff and defendants 1, 2, 3 and the 5^th

respondent is the wife of the 4^th defendant. The plaintiff got married in the year

1995. The defendants 1, 2 and 4 assured the plaintiff that they will allot her, her

appropriate share in the ancestral joint family property. Though the plaintiff

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SA.No.98 of 2023

made demands for partition, the defendants 1, 2 and 4 have delayed to allot her

share and they also sold a portion of the ancestral joint family property to the 6^th

defendant. The plaintiff is not a party to the sale. Therefore, she caused legal

notice and filed a suit for partition claiming her share in the joint family

property.

5. Resisting the same, the defendants filed their written statement stating

that the plaintiff has no right to question the Sale Deed. After notice dated

24.09.2001, demanding partition was issued, there was a Panchayat in which

the plaintiff expressed sorry and promised that she would not proceed further

and therefore, the defendants did not send any reply. Hence, the plaintiff is not

entitled to any share in the suit property. The 4^th defendant had two sons, the

defendants 1 and 2 and two daughters, the 3^rd defendant and the plaintiff were

born through the first wife namely the 5^th defendant. The plaintiff got married

on 25.08.1985 and out of their wedlock the plaintiff gave birth to a female child

on 07.06.1986 and the child died immediately after birth. Thereafter, she got

married to one Saminathan and she lived with him for about six months. Then

she left him and she living with Sankar. At that stage, she demanded her share

from the suit property. The suit properties were already partitioned orally and

according to their respective share, they are paying taxes for the suit properties.

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SA.No.98 of 2023

The Hindu Succession Amendment Act does not apply to the plaintiff. The

defendants have been in a separate possession and enjoyment of their respective

share in the suit properties, since the partition. The defendants 3 and 5 have no

manner of right in the suit properties