Vijayakumar v. Valsala Kumari

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18.02.2022

CORAM:

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN Vijayakumar ... Appellant/Appellant/Plaintiff -VsValsala Kumari ... Respondent/Respondent/Defendant PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated 30.08.2011 of the learned first Additional Subordinate Judge, Nagercoil and made in A.S.No.114 of 2010 on his file, confirming the judgment and decree datd 12.08.2010 of the learned Principal District Munsif Court, Padmanabhapuram and made in O.S.No.167 of 2007 on his file. For Appellant : Mr.K.N.Thampi For Respondent : Mr.V.M.Balamohan Thampi

JUDGMENT

The plaintiff in O.S.No.167 of 2007 on the file of the Principal District Munsif, Padmanabhapuram is the appellant in this second appeal.

2. The said suit was filed for the relief of declaration and permanent injunction. An alternative relief of partition and separate possession was also sought. The defendant is none other than the sister of the plaintiff. The defendant filed written statement controverting the plaint averments. The trial court framed the necessary issues. The plaintiff examined himself as P.W.1 and marked Ex.A1 to Ex.A10. The defendant examined herself as D.W.1 and marked Ex.B1 to Ex.B11. After consideration of the evidence on record, the trial court by judgment and decree dated 12.08.2010 held that the plaintiff is entitled to 2/6th share in the 'B' schedule property. The preliminary decree was granted to that effect. The reliefs of declaration and permanent injunction were negatived. Aggrieved by the same, the plaintiff filed A.S.No.

114 of 2010 before the first Additional Sub Court, Nagercoil. The first appellate court confirmed the decision of the trial court and dismissed the appeal. Challenging the same, the second appeal came to be filed.

"Whether the judgments and decree of the courts below, insofar as portion of the claim of the appellant is rejected, are correct and sustainable, since the appellant's mother had become a mortgagee under exhibit A1/A2 assignment of mortgage, even if the entire mortgage money thereunder was paid by Bhageerathy Amma?"

3. The learned counsel appearing for the appellant reiterated all the contentions set out in the memorandum of grounds and called upon this Court to answer the substantial question of law in favour of the appellant and grant relief accordingly.

4. Per contra, the learned counsel appearing for the respondent submitted that the impugned judgment and decree do not call for any interference.

5. I carefully considered the rival contentions and went through the evidence on record. The suit property originally belonged to one Sankarapillai. The said Sankarapillai had executed the deed of mortgage in favour of Bhageerathy Pillai and her three children. The document is of the year 1934. Probably, during the relevant time, Bhageerathy Pillai had only three children and the other three children were not born. But the facts are not quite clear. Be that as it may, the said Sankarapillai subsequently sold the suit property in favour of Bhageerathy Pillai under Ex.A3. Bhageerathy Pillai had six children namely Amirthamma, Krishnapillai, Saraswathy Amma, Krishnamma, Vijayamma and Thankappan Nair. Saraswathy Amma executed sale deed dated 16.04.1992 (Ex.A7) in favour of the plaintiff Vijayakumar. I went through the contents of Ex.

A7 sale deed. Saraswathy Amma the mother of the parties herein refers only to the sale deed (Ex.A3) executed by Sankarapillai in favour of Bhageerathy Pillai. She also would refer to the release deed executed by Krishnapillai in her favour. There is absolutely no reference to any othi deed (Ex.A1).

6. I therefore safely come to the conclusion that the property originally belonged to Bhageerathypillai. Bhageerathypillai died intestate. Since she had six children, the property devolved in equal measure on all the six children. Thus, Saraswathy Amma had only 1/6th share in the suit property. Since Krishnapillai executed a release deed in her favour, she became entitled to 2/6th share in the suit property. Since Saraswathy Amma had sold her interest in the suit property in favour of the plaintiff under Ex.A7, the plaintiff got 2/6th share in the suit property. The defendant had obtained conveyance / release Amirthamma, Krishnamma, Vijayamma and Thangappan. Therefore, she had 4/6th share in the suit property. It is for this reason that the trial court as well as the first appellate court held that while the plaintiff will be entitled to 2/6th share in the suit property, the defendant will be entitled to 4/6th share in the suit property. Though under Ex.A1, the mother Saraswathy Amma was also shown as one of the mortgagees, in view of 2/3

the subsequent sale in favour of Bhageerathypillai by Sankarapillai under Ex.A3 and the fact there is no reference to any othi in the sale deed (Ex.A7), I come to the conclusion that the said mortgage got extinguished in due course and therefore, the rights of Saraswathy Amma as mortgagee do not survive. The preliminary decree passed by the courts below does not call for any interference. The substantial question of law is answered against the appellant. The second appeal is dismissed. No cost.

Sd/- Assistant Registrar (CS-II) // True Copy // / /2022 Sub Assistant Registrar(CS) rmi To 1.The first Additional Subordinate Judge, Nagercoil. 2.The Principal District Munsif, Padmanabhapuram. Copy To The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.(2 copies) +1 CC to M/s.K.N.THAMPI, Advocate ( SR-7306[F] dated 21/02/2022 ) 18.02.2022 RK(28/03/2022) 3P 6C 3/3