AS/496/2017 of SAROJA Vs R.PARAMASIVAM (DIED), MARAYEE
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 17.03.2026 :::: Pronounced on :30.04.2026
CORAM
THE HON'BLE MR.JUSTICE K.KUMARESH BABU
AS No. 496 of 2017
Saroja
..Appellant(s)
Vs
R.Paramasivam (died)
1. P.Shanmugam (died)
2. Marayee (died)
R2 Died. R3 to R5 are LRS of deceased R2 vide
Court order dated 8.8.2025 and memo dated
28.07.2025. Memo recorded (MJRJ)
3. Sathya, W/o.Late Shanmugham
4. Minor Surya, S/o.Late Shanmugham
5. Minor Mukesh, S/o.Late Shanmugham
Minor Respondents 4 and 5 Are rep By their
Mother And Guardian, 3 rd Respondent
R1 Died, RR3 to 5 Are brought on record as
LRs Of Deceased 1st Respondent Viz,
P.Shanmugam, Vide Order Of Court dated
05/06/2023 made in CMP. Nos. 22107 And
22112 of 2019 in AS. No. 496/2017 (TVTSJ)
..Respondent(s)
Prayer : This Appeal Suit has ben filed t o set aside the judgement & decree
dated 29/4/2017 made in OS No.161/2014 on the file of the I Additional District
Court, Erode.
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For Appellant(s): Mr.T.Murugamanickam (Senior Counsel)
Ms.Zeenath Begum
For Respondent(s): Mr. V.S.Kesavan (R3)
RR4 & 5 – Minors rep. By R3
R1 – died
R2 – died
J U D G M E N T
The present Appeal Suit has been filed seeking to set aside the judgment
and decree dated 29.04.2017 made in O.S.No.161 of 2024 on the file of the
Additional District Court-I, Erode.
2. The case of the Plaintiff is that she is the daughter of the 1 st defendant
and older sister of the 2 nd defendant. The plaintiff along with the 1 st and 2 nd
defendants are the Hindu Joint Family members and the suit schedule properties
are the joint family properties, which were jointly enjoyed by the Plaintiff and
the defendants. When plaintiff demanded her share in the suit schedule
properties orally, defendants delayed to give her share and hence the plaintiff
had instituted the suit for partition in the O.S. No. 161 of 2024. In the said suit,
the Plaintiff sought for the partition of Suit schedule Properties into 9 equal
shares and allotment of 4 such shares to herself.
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3. On the other had during the pendency of the above suit the 1st
defendant died on 04.10.2011 and his wife was thereafter impleaded as the 3 rd
defendant. The 2nd defendant in his written had averred the 1st defendant
during his lifetime had sent a reply notice to the plaintiff stating that the suit
property in the land in the Resurvey No.375/4 measuring about 0.38.0 hectare
originally belonged to the 1 st defendant’s mother Mrs.Periyamarayal. It was
contended that the said property was the separate property of Mrs.
Periyamarayal, who had died about 15 years prior, leaving behind the 1st
defendant as her sole legal heir, and therefore the plaintiff had no share
whatsoever in the said property. The 2 nd defendant further avers that he had
married the daughter of the Plaintiff, taking care of the marriage expenses and
had also helped the palintiff’s younger daughter with her education expenses. It
was further asserted that the Plaintiff had claimed before the defendants to have
a share in the suit schedule properties and had expressed her willingness to
execute a release deed in favour of the defendants upon payment of money,
which was not agreed by the defendants.
4. But subsequently pursuant to the family arrangement arrived at before
the Panchayatdars, the 2 nd defendant had paid a sum of Rs.50,000/- in cash to
the plaintiff, upon which the plaintiff had agreed not to demand partition in the
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suit schedule property, thereby relinquishing her rights in the share of the family
properties, however, the said arrangement was not reduced into writing. It was
further contended that the 1 st defendant, during his lifetime, while he was in a
sound disposing state of mind and of his own volition had executed a Will dated
02.07.2011 in favour of the 2 nd and 3 rd defendants. By virtue of the said Will,
the 1 st defendant bequeathed the lands comprised in R.S. Nos.375/4, 407/1,
415/2 and 439/4 in favour of the 2nd defendant after his lifetime.
5. The 1 st defendant also created a life interest in respect of the land
comprised in R.S. No.412/9E, measuring 40 cents and 1,500 sq.ft of house
sites, in favour of his wife, the 3 rd defendant herein and after whose lifetime
the same property shall devolve upon the 2 nd defendant. It was further stated
that the 1st defendant during his lifetime had also alienated 27½ cents of land in
R.S. No.440/2. Subsequent to the death of the 1 st defendant on 04.10.2011, the
2nd and 3rd defendants have been in enjoyment of the properties, as per the Will
dated 02.07.2011. Whereas the plaintiff is not in the joint possession of the said
properties along with the defendants. Therefore, it is contended that the plaintiff
is not entitled to any share in the suit schedule property.
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6. As the reply to the written statement filed by the defendants, the
plaintiff had averred that the defendants’ contentions that the land in R.S.
No.375/4 measuring 0.38.0 hectare originally belonged to the mother of the
1stdefendant, that the plaintiff had recovered a sum of Rs.50,000/- from the 2 nd
defendant pursuant to the Panchayat arrangement and that the 1 stdefendant had
executed a Will dated 02.07.2011 in favour of the 2 ndand 3rddefendants, are all
false and denied the same.
7. Based on the pleadings made on both sides the following issues were
framed by the Trial Court:
1. Whether the plaintiff is entitled for the preliminary of the
partition in the Suit Schedule Properties?
2. Whether the defendants 2 and 3 are entitled to the Suit
properties as per the Will dated 02.07.2011?
3. To What relief the Plaintiff is entitled for?
8. The Plaintiff herself was examined as PW1 and Ex.A1 to Ex.A11 were
marked as the Plaintiff’s side evidence and the 2 nd defendant along with one
Mr.Arunachalam was examined as DW1 and DW2 respectively and Ex.B1 to
Ex.B3 were marked as the Defendant’s side Witness.
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9. The Learned Trial Judge after hearing both the sides and perusing the
materials available on record had decided the aforesaid Issues vide his
judgement dated 29.04.2017. Insofar as the Issues No.1is considered, the
learned Trail Court held that, the Plaintiff had not clearly proved that the Suit
Schedule Properties are Joint Family Properties of the Plaintiff and the
Defendants. Further based upon the evidence of DW1, the reply notice of the
1st defendant marked as Ex.A11, it was held that the property in R.S.No.375/4
measuring 0.38.0 hectare was acquired from the mother of the 1 st defendant and
the plaintiff had accepted the same, that the property belonged to her
grandmother, in her cross examination. The Trial court further held that the
plaintiff had already received Rs.50,000/- from the 2nd defendant for
relinquishing her share in the suit schedule properties. Therefore it was held that
Plaintiff is entitled for the Preliminary Decree of Partition of the Suit Schedule
Property.
10. As far as the Issue No.2 is considered it was decided that the suit
schedule properties belonged to the 2 nd and 3rd defendants as per the Will dated
02.07.2011, marked as Ex.B3. Both the Issue Nos. 1 and 2 was decided against
the plaintiff, therefore insofar as the 3 rd issue is considered, it was held that the
Plaintiff was not entitled for Preliminary Decree of Partition and separate
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Possession of the Suit Schedule Properties. Therefore the Issue Nos.1 to 3 were
decided against the Plaintiff and accordingly the Present Suit was dismissed
vide the judgment dated 29.04.2017. Aggrieved by the aforesaid judgement the
Plaintiff had filed the present Appeal Suit and had impleaded the 2 nd and 3 rd
defendants as the respondents 1 and 2 respectively. During the pendency of the
present appeal suit the 1 st and 2 nd respondents died, thereafter, their legal heirs
were impleaded as respondents 3 to 5.
11. Heard Mr.T.MurugaMaickam, learned Senior Counsel appearing for
Ms.Zeenath Begum, learned counsel appearing on behalf of the appellant and
Mr.V.S.Kesavan the learned counsel appearing on behalf of the 3rd respondent.
12. Mr.T.MurugaMaickam, learned Senior Counsel appearing for the
appellant contends that the learned Trial Court ought to have decreed the suit as
prayed for, especially in the absence of any proofs to establish that the suit
properties were the separate properties of the 1 st defendant. He vehemently
contends that the Trial Court failed to appreciate the fact that the very plea of
the respondents/defendants with regard to the alleged relinquishment by the
appellant/plaintiff of her share in the suit properties itself substantiates the
appellant’s pre-existing right in the suit properties. He further contends that the
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alleged relinquishment has not been proved by the respondents/defendants
either by production of any documentary evidence or by examining any of the
Panchayatdars whose names have been referred to in the written statement. The
learned Senior Counsel further submitted that even assuming the suit properties
are not established to be joint family properties, the appellant notwithstanding
the same would be entitled to claim partition by virtue of Central Amendment
Act 39 of 2005, since the 1 st defendant, namely the father of the appellant, was
alive both on the date on which the Amendment Act came into force and on the
date of institution of the suit.
13. It is further submitted that the learned Trial Court ought to have noted
the fact that 1 st defendant had no right to execute a Will in respect of the joint
family properties. The learned Senior Counsel further contends that the Trial
Court failed to render any finding with regard to the Will marked as Ex.B3,
particularly as to whether the same was executed in the manner stipulated under
Section 64 of the Indian Succession Act, 1925 and is proved in accordance with
law under Section 69 of the Indian Evidence Act, 1872. He further submits
that, in the absence of such a finding, Ex.B3 ought to be held as not proved in
the manner known to law. It was contended that since the learned Trial Judge
had not rendered any finding with regard to genuineness and due execution of
the Will, the 1 st defendant must be deemed to have died intestate. He further
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contends that the entire judgment of the Trial Court stands vitiated by undue
reliance placed upon the averments in the written statement filed by the
defendants and that the Court had erroneously arrived at the conclusion that the
suit properties were not joint family properties and further held that the 1 st
defendant had executed Ex.B3 in favour of the 2 nd and 3 rd defendants, without
assigning any valid reasons for arriving at such conclusion. In view of the
above, the learned Senior Counsel submits that the dismissal of the suit by the
Trial Court is unsustainable in law and hence seeks this Court to set aside the
impugned judgment.
14. Per contra, Mr. V.S. Kesavan, learned counsel appearing for the third
respondent, submitted that the claim of the appellant/plaintiff, that she had
1/3rd share in the suit schedule properties is untrue and that the learned Trial
Court had rightly held that the appellant was not entitled to a preliminary decree
for partition. He submits that the 1 st defendant in his reply notice marked as
Ex.A11, had categorically stated that the land comprised in R.S. No.375/4
measuring 0.38.0 hectare was the self-acquired property of his deceased
mother, Late Mrs. Periyamarayal, which devolved upon the 1 st defendant after
her lifetime as her sole legal heir. It is further submitted that the appellant
herself had admitted that the said property in R.S. No.375/4 belonged to her
grandmother and therefore, she is not entitled to any share therein. He further
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submits that the 1 st defendant, in the very same reply notice (Ex.A11), had
clarified that in respect of the ancestral properties, no partition had taken place
between himself and the other legal heirs of Mr. Chenniappa Gounder and
therefore the suit schedule properties cannot be treated as joint family properties
available for partition. He vehemently contends that the appellant had received
a sum of Rs.50,000/- from the defendants pursuant to a family arrangement
arrived at before the Panchayatdars, according to which she had relinquished the
right to her share in the family properties. Therefore according to aforesaid
family arrangement the appellant/plaintiff is not entitled to any share in the suit
schedule properties.
15. It is further submitted that the 1 st defendant, during his lifetime, while
in a sound disposing state of mind and of his own volition had executed a Will
dated 02.07.2011, marked as Ex.B3, whereby he bequeathed the suit schedule
properties in favour of his son and wife, namely the 2 nd and 3 rd defendants in
the original suit. The learned counsel contends that the said Will dated
02.07.2011 was duly executed in accordance with law, which can be
substantiated by the deposition of one of the attesting witnesses to the Will, Mr.
Arunachalam, who was examined as DW2. The learned counsel further submits
that the 1 st defendant, in his Will (Ex.B3), had explicitly stated that neither the
appellant/plaintiff nor her legal heirs would be entitled to any share in the suit
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schedule properties and that upon the demise of both himself and his wife,
namely the 3 rd defendant therein, the suit schedule properties shall devolve
absolutely upon his son, the 2nd defendant/1 st respondent and hence it is
submitted that the appellant/plaintiff is not entitled to any share in the suit
schedule properties. The learned counsel finally contends that the impugned
judgment dated 29.04.2017 passed in O.S. No.161 of 2024 is lawful and does
not warrant any interference by this Court. In view of the above, he seeks this
court to dismiss the present Appeal.
16. I have heard the submissions made from both the sides and have
perused the materials available on record.
17. Based on the above contentions made by both sides, the following
questions are present before this Court to be determined
Issues:-
(1) Whether the Court below was correct in disentitling the appellant for
grant of preliminary decree for partition of the suit schedule property;
(2) Whether the respondents have established the Will;
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18. Issue No.1:-
It is the claim of the appellant that the suit schedule property is the
joint family properties, which was contested by the respondents that the suit
properties were not joint family properties and that one of the suit schedule
items was inherited by the deceased first defendant as being the sole legal heir
of the property, which belonged to his mother and that the remaining properties
are the self-acquired properties of the deceased first defendant, the father of the
appellant /plaintiff and the deceased second defendant. The Court below had
given a categorical finding that the suit schedule properties are not joint family
properties and the appellants /plaintiff had failed to prove that the suit schedule
properties are joint family properties.
19. It has also recorded a finding of fact that the appellant /plaintiff in her
cross-examination had also admitted to the fact that the land in re-survey
No.375/4 belonged to the paternal grand-mother. The Court below had also
noticed Ex.A11, a reply notice sent by the deceased first defendant to the notice
sent by the appellant /plaintiff with regard to payment of Rs.50,000/- for
relinquishing her right in the suit properties. The Court below had further noted
that the said reply notice was not responded to nor was also controverted in the
plaint pleadings but only after the written statement was filed, an attempt has
been made by the appellant /plaintiff to controvert the said fact.
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20. A reading of the plaint also do not disclose the manner in which as to
how the suit schedule properties are to be treated as joint family properties and
also the reason as to why the reply notice sent by the deceased first defendant is
contrary to the facts.
21. Further, the appellant had failed to discredit the chief-examination of
DW1 with regard to the payment of Rs.50,000/- to the appellant for
relinquishing her right. When the appellant /plaintiff has not substantiated as to
how the property was to be treated as joint family property and particularly, the
property that had been inherited from the mother and the application of Section
15, the said property would only devolve upon the sons and daughters including
the children of the predeceased son or daughter. Hence, the first defendant being
the son of the grand mother of the appellant was alive at that point of time, the
property would only be vested upon him in his independent right and becomes
him absolute property.
22. Even accepting to case of the Appellant that remaining properties are
joint family properties, the appellant/plaintiff had not placed on record as to
how and when the property came to be inherited by the first defendant and
hence, by the application of Section 8 of the General Rules of Succession Act,
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the first defendant is deemed to have inherited the property in his own rights
and the appellant had failed to establish the devolution of interest in the
property under Section 6 of the Hindu Succession Act. Hence, the issue No.1 is
answered holding that the Court below had rightly examined the lis.
23. Issue No.2:-
The Court below in dealing with the issue that had been framed in respect
of the Will having found that the Will remain unchallenged and not questioned
by the appellant had proceeded to reject the claim of the appellant /plaintiff. It is
to be noted that the respondents had examined DW2, one Arunachalam, who
was the first attesting witness. He had in his Chief categorically deposed that a
Will had been executed by the first defendant of his own will and volition and
that the contends of the Will have also been understood by its Testator. He had
also been extensively cross-examined by the appellant/plaintiff.
24. A perusal of the cross-examination would also indicate that there has
been no contravention of provisions of Section 63 Indian Succession Act in the
execution of the Will. As contended by the learned Senior Counsel for the
appellant, non-examination of the Notary Public, who had attested the Will,
cannot be held to be fallacy in disbelieving the Will. That apart, the appellant
had not also brought in any suspicious circumstances in the execution of the
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Will. The cross-examination of the appellant, who had examined herself as
PW1, would also indicate that she has accepted that the property belonged to the
maternal grand-mother, but also had claimed that it is also belonged to her
grand father. She had also been extensively cross-examined with regard to her
denial of the Will and a reading of the said deposition would indicate that she
had refuted the execution of the Will by the first defendant /her father, but had
only claimed that he could not have executed the Will as he was suffering from
ill-health. In that context, no evidence had been let in by the appellant to drive
home her deposition that father /testator from suffering from ill health nor she
has not pleaded any suspicious circumstances challenging the said Will. Even in
the reply statement filed by her, there is only a blanket denial of the Will,
without any specific reasoning as to how the said Will ought not be relied upon.
25. Considering the fact that DW2 who has been the attesting witness of
the Will, which has been marked as Ex.B3, remain uncontroverted. This Court
is the view that the Will had been validly proved further disentitling the
appellant to seek partition of the suit schedule property.
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26. For the aforesaid reason, this Court do not find any reason in the
Appeal and the Appeal Suit stands dismissed. No order as to costs.
30.04.2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
Maya
To
The Judge, I Additional District Court, Erode.
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K.KUMARESH BABU, J.
Maya
AS No. 496 of 2017
Dated : 30.04.2026
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