IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE : 19.03.2021

CORAM:

THE HONOURABLE MR. JUSTICE T.RAJA

and

THE HONOURABLE MR. JUSTICE G.CHANDRASEKHARAN

A.S.No.596 of 2018

N.Thangamani @ Radhamani

...Appellant/Plaintiff

..vs..

1.A.Velliangiri

2.A.Alagiriammal (died)

...Respondents/Defendants

(Second respondent died. Appellant and

first respondent are the LRs of the deceased

second respondent. Recorded as per the memo

dated 21.03.2017 (SR 2897) and vide court order

dated 27.03.2017 made in MP No.1 of 2014 in AS

(SR) 38773 of 2014)

This Appeal is filed under Section 96 of Code of Civil

Procedure against the judgment and decree passed by the learned

III Additional District and Sessions Judge, Salem in OS No.207

of 2009 on 26.07.2013.

For Appellant

:

Mr.M.Devaraj

For Respondent-1

:

Mr.V.P.K.Gowtham

JUDGMENT

(Judgment of the Court was delivered by G.CHANDRASEKHARAN, J.,)

The appellant filed a suit in O.S.No.207 of 2009 on the file

of III Additional District and Sessions Judge, Salem claiming

2/3 share in the suit properties. The suit was filed against

her brother Vellingiri, appellant herein and her mother Alagiri

Ammal. Alagiri Ammal, the second respondent in this appeal died

during the pendency of this appeal leaving behind the appellant

and the first respondent, and it was recorded. Now the appeal

is contested by the first respondent Vellingiri.

2.

The case of the appellant is that the suit properties

and other properties were ancestral properties and in the

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

partition between her father Annamalai Gounder and his brothers

in 1962, the suit properties were allotted to Annamalai Gounder.

The partition list was registered on 04.02.1992. Annamalai

Gounder was in possession and enjoyment of the properties

alloted to him along with the appellant, respondent, deceased

mother and one more brother Arunagiri. They constituted Hindu

Undivided Joint Family (HUF). Arunagiri left the family in the

year 1984 without getting marriage and his whereabouts is not

known till now. He is presumed to be dead in law. Annamalai

Gounder died intestate on 09.09.2008. The suit properties are

still undivided and being enjoyed in common by the appellant and

respondent. The appellant demanded the respondent to effect

partition on several occasions. However the respondent has not

come forward to effect partition and give share to the

appellant. During the pendency of this suit, the mother Alagiri

Ammal executed a registered release deed in respect of her

undivided 1/3 share in the suit properties in favour of the

appellant for a valid consideration. As such the appellant is

entitled to 2/3 share in the suit properties. Therefore, this

suit claiming 2/3 share in the suit properties.

3.

Respondent filed a written statement and additional

written statement and his case, in brief, is as follows:-

The relationship between the parties is admitted. It is

false to state that the suit properties are ancestral properties

of Annamalai Gounder. The suit properties are the self

acquired properties of Vavura Gounder, the grandfather of

respondent. He purchased the suit properties through sale deeds

dated 15.12.1950, 23.02.1960, 31.01.1961 and 31.08.1965. After

his death, his sons namely Annamalai Gounder, Palaniappa Gounder

and Natesan were enjoying the properties without any division.

There was a partition koorchit executed between Annamalai

Gounder and his brothers on 04.02.1992 and it was notorised on

04.02.1993. It is true that the suit properties are not

divided by metes and bounds, but it is false to state that the

suit properties are enjoyed in common by the appellant and

respondent.

The suit properties are not joint family

properties. Since the suit properties were derived by Annamalai

Gounder by way of partition koorchit dated 04.02.1992, they are

to be