NIRMALA Vs. DURAISAMY

JUDGEMENT

(1.) This Second Appeal is directed against the judgment and decree of the learned Principal District Judge, Namakkal in A.S.No.33 of 2014, setting aside the dismissal judgment of the trial Court by partly decreeing the suit in respect of declaratory relief and confirming the dismissal of the partition relief claimed.

(2.) The appellant/plaintiff filed a suit for declaration that the final decree passed in O.S.No.36 of 2006 in respect of suit properties is not binding on the appellant and for partitioning the suit properties into two shares and allotting the portion in Survey No.l23/1B in occupation of the appellant as her share. The suit properties situate in Seerapalli village, Rasipuram taluk. The deceased first defendant is the father of the appellant and respondent. There was a partition in respect of suit properties between defendants and first defendant's brother Chinna Gounder, on his behalf and on behalf of his minor son. In the said partition 'A' schedule properties were allotted to defendants 1 and 2 and Chinna Gounder was allotted 'B' schedule property. After the partition, first defendant purchased well and land annexed with the well in Survey No. 122/1. Purchased half share in well from one Palaniappa Viagara. The rest was allottedto defendants 1 and 2 in the partition. Since, the property from Palaniappa Viagara on 31/12/1984 was purchased from the income derived from ancestral property, the property purchased under this sale deed is also a joint family property. Appellant's marriage was conducted on 20/2/1988. On 11/9/1991, first defendant executed a settlement deed to an extent of 45 cents in Survey No. 118/1 and an extent of 6 cents available at Survey No. 123/1 to the appellant and the appellant is enjoying this property. Then as on 4/3/1999, first defendant executed a settlement deed in respect of 60 cents in Survey No. 122/8, 44 cents in Survey No. 122/9, 66 cents in Survey No. 123/1 , 30 cents in Survey No. 123/2, 1/4 share in the well and electric motor in Survey No. 122/1. Appellant is also enjoying these properties. Since, there was a dispute with regard to taking water from common well, appellant filed a suit in O.S.No.57 of 2006 on the file of District Munsif Court, Rasipuram. This suit was dismissed on 30/8/2007. It was pleaded in the suit by the respondent that the settlement in favour of appellant is not true. The suit was dismissed for the reason that appellant has not established the possession and title. There was a suit between the defendants in O.S.No.36 of 2006 and that resulted in passing compromise decree. The suit filed in O.S.No.36 of 2006 without impleading the appellant isnot correct. The judgment in O.S.No.36 of 2006 was passed without considering the amendments brought under Act 39/2005 in Hindu Succession Act 1956. Appellant is entitled to 1/3 share in the suit properties and suppressing her right in claiming 1/3 share in suit properties, the suit in O.S.No.36 of 2006 was filed and therefore the judgment and decree in O.S.No.36 of 2006 and final decree passed thereon, will not bind the appellant. During the pendency of this suit, first defendant died and therefore, appellant is entitled to Vi share in the suit properties. Therefore, the suit is filed for the reliefs aforesaid.

(3.) It is seen from the case of the respondent/second defendant that there was a partition between defendants and first defendant's brother Chinna Gounder on 2/6/1983. 'A' schedule properties were allotted to defendants and 'B' schedule properties were allotted to Chinna Gounder. It is true that first defendant purchased well and other rights in Survey No. 122/1 from Palaniappa Gounder (V2 share). At the time of marriage of the appellant on 20/2/1988, she was provided Rs.1,00,000.00, 50 sovereign gold jewels, apart from marriage expenses. In 1989, she was provided Rs.50,000.00 worth of household articles. Marriage of the appellant was celebrated before 1989 and therefore, she is notentitled to claim any share in the suit properties. It is false to allege that appellant was given properties through settlement deed dtd. 4/3/1999. First defendant was not well and he wanted to execute a Will in favour of his wife Pavayee. Appellant took first defendant to Namagiripettai Sub-Registrar Office on 11/9/1991 and on 4/3/1999 and created the documents in her name on the guise of executing a Will. Respondent came to know about these settlement deeds only after the filing of the suit in O.S.No.57 of 2006. The suit in O.S.No.57 of 2006 was dismissed. It was found that on the basis of these settlement deeds, appellant had effected name change in revenue records and electricity connection. After the dismissal of the suit in O.S.No.57 of 2006, appellant filed this suit. Appellant was permitted to live in the house in Survey No.l23/1B. This suit is filed without any basis for claiming partition. Therefore, suit has no merits and liable to be dismissed.