Back
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBRAMANIAN, J.
Alli Sekar alias Sekar – Appellant
Versus
Ramu Rep. by his Power Agent Rajeswari Ammal and Others – Respondents
S.A. No. 60 of 2014
Decided On : 29-11-2019
Civil Procedure Code, 1908 - Section 100 - Evidence Act - Sections 68 or 69 or 71 - Partition and separate possession - Suit properties are absolute properties - Suit properties originally belonged to late - Item were purchased by in her name various sale deeds marked - As regards item plaintiff would contend that had entered into an agreement with one Kennan and since said did not come forward to execute sale deed as per agreement she had filed suit seeking specific performance - Said suit was decreed – Held, Answer to this non inclusion is that property belonged to and therefore non inclusion of it in this suit which is with reference to estate of will not render suit bad for partial partition - It is also pointed out that out schedule properties found only first three items are made subject matter of suit. Even there as regards item only portion of it has been included in suit - According only an extent of about cents in item belonged to - Hence only cents out of acre cents was made subject matter suit - Remaining property according to belongs to and his estate being not made subject matter of partition suit will not be bad for partial partition - Plaintiff had filed suit life time of seeking partition and separate possession of estate would have been definitely entitled to share - That share now forms part estate - Therefore contention of counsel that this suit being only for partition estate cannot be said to be bad for partial partition because of non inclusion properties that stand in name of cannot be accepted -Another this court had that suit for partition must include whole estate which is available - Plaintiff cannot be allowed to omit properties at his discretion and seek partition only portion of properties - While doing so this court had relied upon judgment of Honble Supreme Court in Since Deceased by Legal Representatives - In view of aforesaid pronouncement of this court constrained to answer second question of law in favor of appellant – Appeal allowed
JUDGMENT :
R. SUBRAMANIAN, J.
Prayer: Second Appeal filed under Section 100 of C.P.C. to set aside the judgment and decree passed in O.S. No. 189 of 2005 dated 29.08.2012 on the file of the Court of District Munsif, Sirkali as confirmed in A.S. No. 95 of 2012 dated 29.07.2013 on the file of the Court of Principal Subordinate Judge, Mayiladuthurai.
1. The 1st defendant in O.S. No. 189 of 2005 having suffered a decree for partition and separate possession of 1/3rd share each of the plaintiff and the defendants 3 to 6 together at the hands of the courts below has come up with this Second Appeal.
2. The plaintiff/1st respondent is represented by his power agent. The suit is one for partition and separate possession of his 1/3rd share on the following pleadings:-
3. Since the 2nd defendant Kumadhavalli @ Kumudha died pending suit, the defendants 3 to 6 were impleaded as her legal representatives. The 7th defendant was impleaded on the plea that he has purchased item Nos. 4 to 7 from the 1st defendant. It was claimed that the sale by the 1st defendant in favour of the 7th defendant is not binding on the plaintiff. On the above contentions, the plaintiff sought for partition as stated above.
4. The defendants 3 to 6 who were impleaded as legal representatives of the deceased 2nd defendant conceded the case of the plaintiff and sought for partition of their 1/3rd share also as legal representatives of the deceased 2nd defendant.
5. The 1st defendant filed a written statement contending that the suit as framed is not maintainable. According to the 1st defendant, the father of the parties and husband of Kanagayal viz. Ayyasamy was working in Singapore and the suit properties were purchased in the name of Kanagayal out of the monies that were sent by him. Therefore, according to the 1st defendant, Kanagayal was not the absolute owner of the suit properties.
6. It is the further claim that Ayyasamy even during his life time had executed a registered Will on 22.06.1987 bequeathing certain properties in favour of the 1st defendant as well as the plaintiff. As per the said Will item Nos. 1 to 3 of the suit properties were allotted to the 1st defendant and the 1st defendant has been enjoying the said properties as absolute owner thereof pursuant to the said Will.
7. Apart from the Will, Ayyasamy had also executed a Kor Chit by which he had allotted certain properties to the plaintiff and the 1st defendant. The 1st defendant would further contend that all the properties had been divided and there was no property left to be partitioned in the family. The 1st defendant also pleaded that item Nos. 4 to 7 are not in his possession.
8. He has also pleaded that Ayyasamy had executed another unregistered Will on 18.05.1991. Under the said Will, Ayyasamy had bequeathed the properties that were retained by him to the plaintiff as well as the 1st defendant. It is claimed that the 1st defendant had also sold the properties bequeathed to him to the 7th defendant Thirugnanam. Therefore, according to the 1st defendant, item Nos. 4 to 7 of the suit properties are in possession of Thirugnanam.
9. It was further contended that the house site that was purchased from one Palanisamy Gurukkal of Allivilagam Village was given to the plaintiff. Th
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
