A.S.(MD)No.139 of 2019

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 12.03.2021

CORAM:

THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

A.S.(MD)No.139 of 2019

and

C.M.P.(MD)No.7183 of 2019

1.M.Arumugam

2.M.Sivakumar

...Appellants/Plaintiffs

Vs.

1.Mooka Mudaliyar (died)

..1st defendant

2.M.Shanmugasekar

..Respondent/2^nd defendant

PRAYER: This Appeal Suit is filed under Section 96 of the Civil

Procedure Code, to set aside the judgment and decree dated

20.02.2019 made in O.S.No.21 of 2012 on the file of the First

Additional District Judge, Tirunelveli.

For Appellant

: Mr.R.Devaraj

For Respondents

: Mr.M.P.Senthil

JUDGMENT

Aggrieved over the dismissal of the suit filed for

partition, this appeal is filed.

2. For the sake of convenience, the parties are referred to

herein, as per their rank before the Trial Court.

3. The brief facts, leading to the filing of this Appeal

Suit, are as follows:-

The plaintiffs and the second defendant are the sons of the

first defendant. The parties were residing as joint family. The

mother of the plaintiffs died on 18.10.2009. The first schedule

property originally belonged to the grandparents of the plaintiffs

namely, Muthiah Mudaliar and Muthammal. They have executed a

conditional sale on 01.03.1946 for himself and as guardian for the

first defendant along with plaintiffs' aunt Pitchaiammal in favour

of one Gomathy Mudaliar. The said Gomathy Mudailar also executed an

agreement dated 09.03.1946 agreeing to execute the reconveyance on

08.03.1961. Since she had failed to do so, the first defendant had

filed a suit in O.S.11 of 1961 before the District Munsif Court,

Tirunelveli and the suit has been decreed and the property has been

registered in favour of the first defendant. After the purchase, he

made improvements and put up construction in the first schedule

property out of the joint family income. The plaintiffs and the

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A.S.(MD)No.139 of 2019

second defendant also contributed money for construction of house as

they are the sons of the first defendant. The second schedule

property was purchased on 26.09.1994 from Solaiappa Mudaliar in the

name of the first defendant from the joint family income as he is

the elder of the family. The second plaintiff has constructed a new

house, by spending a sum of Rs.5 lakhs. Now, in the first schedule

property, the first plaintiff is residing in one portion and the

second defendant is residing in another portion. The second

plaintiff is residing in the second schedule property. Both the

properties are joint family properties and each are entitled to

share in the property. The first defendant has no right to execute

the settlement deed in favour of the second defendant in respect of

the entire property. Hence, the suit.

4. Before the trial Court, on the side of the plaintiffs

P.W.1 to P.W.4 were examined and Exs.A1 to A10 were marked and on

the side of the defendants D.W.1 was examined and Exs.B1 to B12

were marked.

5. The first defendant admitting the relationship between the

parties stated that there is no joint family. The second schedule

property was purchased by the first defendant out of his own income

and savings. After the marriage of the plaintiffs, the first

defendant allowed the first plaintiff to reside in one portion of

the first schedule property and in another portion the first

defendant is residing along with the second defendant. Similarly,

the first defendant allowed the second plaintiff to reside in the

second schedule property. After the death of his wife, the first

defendant was residing with the second defendant and he has executed

the settlement deed in favour of the second defendant in respect of

the first and second schedule properties. The plaintiffs have no

right to question the same. The second defendant took a s