Appeal Suit No. 826 of 2010 and M.P. No. 1 of 2010. Case: R. Varadhan and Ors. Vs B. Saraswathi and Ors.. High Court of Madras (India)

Case NumberAppeal Suit No. 826 of 2010 and M.P. No. 1 of 2010
CounselFor Appellant: T.N. Rajagopalan, Adv. and For Respondents: Balasubramanian, Adv.
JudgesN. Sathish Kumar, J.
IssueCivil Procedure Code
Judgement DateMarch 23, 2017
CourtHigh Court of Madras (India)


N. Sathish Kumar, J.

  1. Aggrieved over the preliminary decree passed by the learned III Additional Judge, City Civil Court, Chennai, the present appeal came to be filed by the first and fourth defendants. The parties are arrayed as per their own ranking before the trial Court.

  2. The plaintiffs have filed the suit for partition and separate possession of their 2/5 share in the schedule property and for a declaration to declare that the settlement deed dated 25.11.2002 executed by the first defendant in favour of the fourth defendant is null and void in so far as plaintiffs 2/5 share in the schedule property.

  3. Brief facts of the plaintiffs case is as follows:- The plaintiffs and defendants 1 to 3 are the daughters and son of one Palayammal fourth defendant is the son of first defendant. The suit property was originally owned by Smt. Palayammal @ Saran Palayammal, mother of the plaintiffs and defendants 1 to 3. The said Palayammal died intestate on 1.7.1993, leaving behind her the plaintiffs and defendants 1 to 3 as her heirs. The first and fourth defendants are residing in the suit property and the first defendant with mala fide intention to defraud the plaintiffs, had executed a settlement deed dated 25.11.2002 in favour of his son-fourth defendant. The said settlement is invalid and not biding on the plaintiffs' share. The plaintiffs being the daughters of Palayammal, are entitled to 2/5 share in the suit property. The plaintiffs being the co-owners of the property are also entitled to joint possession of the same. In spite of several demands made by the plaintiffs for partition, the defendants have not come forward for partition of the property. Hence the plaintiffs issued legal notice dated 29.3.2007. The first defendant declined to do so by a reply dated 9.4.2007. The defendants 2 and 3 also joined hands with the first defendant and sent a reply dated 16.4.2007. Hence, the plaintiffs have come forward with this suit for partition and hand over the possession of the plaintiffs' 2/5 share in the suit property.

    4 (a). Brief facts of the defendants case is as follows:- The first defendant denied the allegations of the plaintiffs that the suit property is the absolute property of Palayammal alias Saran Palayammal mother of the plaintiffs and defendants 1 to 3. It is the contention of the first defendant that he inherited the property from his great grandfather, as the only male legal heir for his great grandfather. All taxes and assessments are made only in the name of the first defendant. His mother never had any legal right to claim ownership of the property. He had invested his own earnings and savings and he had legally executed a settlement deed on 25.11.2002 in favour of his son-4th defendant herein, retaining life-interest for him and his wife. The property liable for partition was an entirely different property bearing Door No. 15/19, Varadapuram 1st Street, Kottur, Chennai-85 and all the legal heirs had received their shares from a builder M/s. Babu and Associates, Chennai-34 in October 2005 and had already sold the property. The first defendant is the owner of the property for the last 56 years, by way of birth and succession and has been uninterrupted possession and enjoyment of the property from the date of his birth till date. He has been asserting himself as ostensible owner and he had perfected title by adverse possession. It is the contention of the first defendant that Palayammal never had any title to the suit property and she never purchased the suit property. The suit for partition is not maintainable because the title of Palayammal has not been established by the plaintiffs. The prayer for declaration that the settlement deed dated 25.11.2002 is null and void is not maintainable because the relief is contingent and dependent upon the establishment of title to be vested in Palayammal. Mere legal notice is not substitute for the title. The plaintiffs lack title, possession and legal right to file the suit. The suit has been filed after 15 years after the death of their mother which is barred by limitation. The suit is vexatious lacking support of documents. Hence, he prayed for dismissal of the suit.

    4 (b). The second and fourth defendants have adopted the written statement filed by the first first defendant. The third defendant filed her written statement stating that the first defendant have no right to execute the settlement deed and the same is invalid in the eye of law. It is the contention of the third defendant that the plaintiffs were married long time ago and the entire...

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