IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 08.10.2020

CORAM:

THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

C.R.P.No. 2203 of 2018

1.A.Rangaraj

2.R.Muralidharan

...Petitioners

.Vs.

1.C.Ramachandran

2.C.Sivakumar

3.C.Balakumar

..Respondents

Prayer: Civil Revision Petition filed under Article 227 of the

Constitution of India, against the fair and decreetal order

dated 31.10.2017 passed in I.A.No.533 of 2017 in O.S.No. 2705 of

2013 on the file of the II – Additional District Munsif Judge at

Coimbatore.

For Petitioners : Mr.K.Myilsamy

For Respondents : Mr.G.R.Deepak

O R D E R

The defendants in O.S.No.2705 of 2013 are the petitioners.

Challenge in this civil revision petition is to an order

dismissing the application filed under Order 7 Rule11 of C.P.C.,

seeking rejection of the plaint on the ground that the suit has

no cause of action and the plaintiffs have no interest in

presenti in the suit property.

2. The plaintiffs claim partition and separate possession of

their alleged 1/7^th share in the suit properties. The plaintiffs

claim that the suit properties were purchased by their grand

father, Arumugam on 20.06.1979 for valid consideration and

Arumugam was in possession of the property till his death in

1993. On the death of Arumugam, it appears that the daughters

of Arumugam namely, Sarojini, Rukumani and wife of Arumugam,

Subbammal had executed a Paga Pathiya Viduthalai Pathiram

(release deed) on 18.11.2004 relinquishing their interest in the

properties in favour of the first defendant, who is the son of

Arumugam. The plaintiffs would claim that the realeasor namely

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

wife and daughters of Arumugam have no right to execute the

release deed, since the properties are ancestrol properties.

3. Upon service of summons, the defendants filed the

application for rejection of the plaint contending that the

plaintiffs have admitted that the properties were purchased by

Arumugam. Upon his death, the properties would devolve under

Section 8 of the Hindu Succession Act on his class – I heirs,

namely, his wife and children. The wife and the daughters of

Arumugam had executed a realease deed relinquishing their

interest in the properties in favour of the first defendant.

The releasor is the mother of the plaintiffs therefore, the

plaintiffs have no right to question the release by their mother

during the life time of their mother, since they would not get

any interest of the property during life time of their mother.

4. This application was resisted by the plaintiffs

contending that since the suit is not instituted against

Arumugam, they are entitled to maintain the suit. Upon

considering the application, the Trial Court dismissed the

application on the conclusion that there is another suit pending

in O.S.No.1361 of 2006 in respect of a lease wherein, father of

the plaintiffs Chinnasamy is claiming to be in possession of the

property. According to the Trial Court, since the property is

in possession and enjoyment of Chinnasamy, the plaintiffs are

entitled to maintain the suit. The Trial Court has concluded

that the plaint cannot be rejected based on the defence. I am

unable to accept the conclusion of the Trial Court. The suit

between Chinnasamy and another defendant is in respect of his

possession. The claim of the present plaintiff is based on the

fact that their grandfather, Arumugam had purchased the property

and on his death, it would devolve on his children and

therefore, it has become ancestral property. This plea

overlooks the very character of the property.

5. Admittedly, the property is purchased by Arumugam in

20.06.1979. Arumugam died in 1993 and on his death, devolution

will only be under Section 8 of the Hindu Succession Act.

Arumugam's wife, son and daughters took the property absolutely

by