Kannan Padaiyatchi(Died) v. Kodivel

JUDGMENT The 2nd defendant in a suit in O.S.No.97 of 2009 is the appellant herein.

¶2Pending second appeal, the sole appellant died and his legal heirs have been impleaded as appellants 2 to 6. Likewise, 2nd respondent died and his legal heirs have been impleaded as respondents 7 to 14.

¶3The first respondent herein/plaintiff filed the above said suit for partition seeking 1/3rd share in the suit property and it was decreed by the Trial Court. Challenging the findings of the trial court, the 2nd defendant filed an appeal in A.S.No.80 of 2017 and the same was dismissed by the first appellate court, confirming the findings of the trial court. Aggrieved by the concurrent findings of the courts below, the 2nd defendant has filed the present second appeal. Page3 of 8

¶4According to the first respondent/plaintiff, the suit property originally belonged to one Govinda Padayachi and his sons, namely, plaintiff, defendants 1 and 2 and one Ramalingam. On 09.07.1986, there was a partition involving plaintiff, defendants 1 and 2 in respect of the family properties. Later, the legal heirs of Ramalingam filed a suit in O.S.No.118 of 1996 on the file of Principal District Munsif, Ulundurpet seeking partition of 1 /4 share in the family properties. They also challenged the partition deed dated 09.07.1986 as invalid. The said suit was decreed and the legal heirs of the Ramalingam were granted 1 /4 share in the family properties. In the said suit, the partition deed dated

09.07.1986 was also held to be invalid. Therefore, it is the case of the plaintiff that in the remaining 3 /4 share, the plaintiff and the defendants 1 and 2 are entitled to 1 /3 share each and hence, the instant suit has been filed by him in respect of the remaining family properties seeking his 1/3 share.

¶5The appellant/2nd defendant filed a written statement, wherein, he admitted the partition deed between the plaintiff and the defendants 1 and 2 dated 09.07.1986. He also admitted the filing of the suit by legal heirs of Ramalingam. It was the specific case of the 2nd defendant that the suit properties were partitioned 23 years ago and therefore, there was no joint family properties on the date of presentation of the suit. It was also stated by him that the properties allotted to the plaintiff were attached and it was sold in auction for recovery of the loan incurred by the plaintiff. Therefore, according to the 2nd Page4 of 8 defendant, the plaintiff had no claim over the remaining properties, after allotment of 1 /4 share to the legal heirs of Ramalingam.

¶6The 4th defendant filed a written statement stating that he purchased 5th item of the suit property from the first defendant for a valid consideration on

04.12.1987 and hence, he was the bonafide purchaser of the suit property.

¶7Before the trial court, the plaintiff was examined as PW1 and 16 documents were marked as Ex.A1 to Ex.A16. On the side of the defendants, 4 witnesses were examined as DW1 to DW4 and 10 documents were marked as Ex.B1 to Ex.B10.

¶8The trial court on appreciation of evidence available on record, came to the conclusion that the plaintiff was entitled 1/3 share in the suit properties and granted a preliminary decree for partition. The trial court also held that the 5th item of the suit property was sold to the 4th defendant by the first defendant and hence, under the principle of equity, item No.5 of the suit property shall be allotted to the share of the first defendant. Aggrieved by the findings of the trial court, the 2nd defendant filed an appeal in A.S.No.80 of 2017 on the file of Subordinate Judge, Ulundurpet and the first appellate court dismissed the first appeal, affirming the findings of the trial court. Challenging the concurrent findings of the courts below, the 2nd defendant has filed the present second appeal. Page5 of 8

¶9The learned counsel for the appellants would submit that the plaintiff sold some of the suit properties to third party Arunagiri under Ex.B9 dated

12.01.2009 and after the sale, the plaintiff is not entitled to claim any share in the suit properties. She also submitted that, even pending suit, the plaintiff sold certain properties.

¶10The material facts regarding relationship of the parties and the earlier litigations are admitted by the appellant. It is not disputed that the plaintiff, defendants 1 and 2 and one Ramalingam are children of Govinda Padayachi and all are entitled to 1 /4 share in the properties. Of course, in the year 1986, there was a partition involving plaintiff and defendants 1 and 2. Subsequently, the said partition was challenged by the legal heirs of Ramalingam in a partition suit in O.S.No.118 of 1996. The said suit was decreed by granting 1 /4th share in favour of the legal heirs of Ramalingam and the partition made in the year 1986 was also held to be invalid. In such circumstances, in the remaining 3 /4 share, the plaintiff and the defendants 1 and 2 are entitled to 1 /3 share each.

¶11The present suit has been filed in respect of the remaining 3 /4th share of the family properties and the plaintiff is entitled to 1 /3 share in the said properties. The main objection raised by the appellants is that the plaintiff sold some of the properties before filing the suit as well as after. In case, the Page6 of 8 plaintiff sold any of the suit properties to third parties, the equities can be worked out in the final decree proceedings. Now, preliminary decree has been granted ascertaining the share of the plaintiff and the defendants 1 and 2 as 1 /3 each. As far as the alienation made by the plaintiff is concerned, the said point can be raised in the final decree proceedings by the appellants and the trial court, before passing the final decree, can work out the equities by taking into consideration the alienation made by the parties.

¶12With these clarification, the second appeal stands dismissed, affirming the findings of the courts below. There shall be no order as to costs. 17-04-2026 (2/2) Index: Yes/No Speaking/Non-speaking order MST To

¶1The Subordinate Judge, Ulundurpet.

¶2The II Additional District Munsif, Ulundurpet. Page7 of 8 SAoNo.o44oofo2026 S.SOUNTHAR,oJ. MST SAoNo.o44oofo2026 17-04-2026 (2/2) Page8oofo8

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17-04-2026 CORAM THE HON'BLE MR.JUSTICE S. SOUNTHAR 1. KANNAN PADAIYATCHI(died) S/o.Govinda Padayachi, Eswarakanda Nallur Post, Sriupuliyur Village, Ulunderpet Taluk, Villupuram District. 2. Kaveri Kannan, W/o.Kannan, 3. Venkatesan, S/o.Kannan, 4. Ravichandran, S/o.Kannan, 5. Sathya, W/o.Ramkumar, 6. Sankari, W/o.Arumugam (sole appellant died and A2 to A6 are brought on record as L.Rs of the deceased sole appellant vide court order dated 24/03/2026 made in CMP Nos.6938,6954 and 6956 of 2026 in S.A.No.44 of 2026) ..Appellant(s) Vs 1. Kodivel, S/o.Govinda Padayachi, Eswarakanda Nallur Post, Sirupuliyur Village, Ulundurpet taluk, Villupuram District. 2. Ranganathan Padayachi (died) S/o.Govinda Padayachi, Eswarakanda Nallur Post, Sirupuliyur Village, Ulundepat Taluk, Villupuram District. Page1 of 8 3. Jeyalakshmi, W/o.Viswanathan, Eswarakanda Nallur Post, Sirupuliyur Village, Ulundepat Taluk, Villupuram District. 4. Sammantham, S/o.Subramania Padayachi, Eswarakanda Nallur Post, Sirupuliyur Village, Ulundepat Taluk, Villupuram District. 5. Sankar, S/o.Masilan, Veeraperuma Nallur, Panruti Taluk, Cuddalore District. 6. Arumugam, S/o.Chinnadurai, Eswarakanda Nallur Post, Sirupuliyur Village, Ulundepattaluk, Villupuram District. 7. Pavazhan, w/o Ranganathan Padayachi. 8. Siva Pushnam, d/o Ranganathan Padayachi. 9. Kumari, d/o Ranganathan Padayachi. 10. Kamachi, s/o Ranganathan Padayachi. 11. Amudha, w/o Sankar 12. Sabitha, d/o Sankar 13. Sathish Babu, s/o Sankar 14. Saratha Babu (R2 died, R7 to R14 are brought on record as legal heirs of the deceased R2, vide order dated 17.04.2026 made in CMP Nos.6977, 6980 and 6981 of 2026 in S.A.No.44 of 2026) ..Respondent(s) Page2 of 8 Prayer: Second appeal filed under Section 100 of CPC to set aside the judgement and decree dated 26-03-2018 passed in AS.No.80 of 2017 on the file of the Subordinate Judge, Ulundurpet, confirming the judgement and decree dated 21-10-2016 passed in OS.No.97 of 2009 by the II Additional District Munsif, Ulundurpet. For Appellant(s): Ms.V.Saraswathi For Respondent(s): Mr. Gnana Moorthy For R1 (in Sr Stage) M/s. Muruganatham For R4 (in Sr Stage)