1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(APPELLATE JURISDICTION)

C.M.P. No. of 2021

In
A.S.No. of 2021

1. Mrs. U. Gowri,
W/o. Umapathi,
No. 54/120, Jagathambikai Nagar,
Padi, Chennai – 600 084.

2. S. Kumar,
S/o. A.J. Sambasivam,
No. 24/30, Vallam Bangaru Street,
Purasawakam,
Chennai – 600 007.

3. S. Maligha,
W/o. Sundaram,
No. 2/1, Subburayan 5th Street,
Namalwarpet,
Otteri, Chennai – 600 012.

4. R. Sumathi
W/o. K. Rajamohan,
New No. 10, Old No. 85,
South Mada Street,
Thiruvotriyur, Chennai – 600 019.

…Petitioners/ Appellants

Vs.

1. K. Chandrasekar,
S/o. Kumarasamy Mudaliar,
No. 1/127, Vithyanathan Mudali Street,
Chennai – 600 001.

2. J. Vijaya,
W/o. Late Janarathanan,
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3. J. Jayakumar,
S/o. Janarathanan

4. J. Sugantha,
W/o. Jayaganthan

All are residing at

No. 22, 2nd Narayana Street, Seven Wells,
Chennai – 600 001.

5. J. Rathi,
W/o. Jayaganesh,
No. 30, Jaganathan Nagar Main Road,
Arumbakkam, Chennai – 600 106.

6. J. Indra,
W/o. Jayavel,
No. 30, Jaganathan Nagar Main Road,
Arumbakkam, Chennai – 600 106.

7. S. Mani,
S/o. Sambantham,
No. 30, Jaganathan Nagar Main Road,
Arumbakkam, Chennai – 600 106.

8. S. Devaraj,
S/o. Sambantham,
No. 3, 3rd Street, Vallalar Nagar,
Thirumullaivayal, Vellanur,
Chennai – 600 062.

9. S. Pasupathy,
S/o. Sambantham,
No. 6, Bharathidasan Street,
Thiruvallur – 602 001.

10. K. Vatchala Devi,

W/o. Karunakaran, Old No. 50,
New No. 2, Vadaagarem,
Flat No. 7, Saravana Flats, 1st Street,
Choolaimedu, Chennai – 600 094.
…Respondents/Respondents
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AFFIDAVIT OF S.KUMAR

I, S. Kumar, Son of A.J. Sambasivam, residing at No. 24/30, Vallam

Bangaru Street, Purasawakam, Chennai – 600 007 do hereby
solemnly and sincerely state as follows :

1. I submit that I am the 2nd Petitioner herein and the 2 nd Appellant

in the above appeal and as such I am very well acquainted with the
facts of the case. I further submit that, I am swearing this Affidavit
on behalf of the other Petitioners as well.

2. I submit that, myself along with the other Petitioners had

instituted the suit in O.S. No. 6161 of 2016, on the file of III
Additional City Civil Court, Chennai for partition of suit schedule
property into 8 equal shares and the same was dismissed vide its
Judgment and decree dated 28.11.2019 in O.S. No. 6161 of 2016.
Aggrieved against the same we are preferring the above First
Appeal. The brief facts of the case which has necessitated me to
approach the Court are as follows:

3. I submit that, the suit schedule property originally belonged to

Late Kumarasami Mudaliar who purchased the same vide Sale Deed
dated 06.09.1951 registered as Document No. 1030/1951 on the
file of SRO Sowcarpet, Chennai out of his own income and from the
date of the said sale deed he was in possession and enjoyment of
the said property. I further submit that, during the lifetime of the
said Kumarasamy Mudaliar, he had mortgaged the suit property at
George Town Co-Operative Bank, Muthialpet, Chennai – 600 001
for a sum of Rs. 10,000/- dated 12.02.1968 and had further
mortgaged the suit property in the same Bank for a sum of Rs.
5,000/- for demolition and reconstruction of the suit property. I
further submit that, thereafter on 28.04.1969 Mr. Kumarasami
Mudaliar died intestate leaving behind his Wife Parvathi ammal and
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his Children. I further submit that, Mrs. Parvathi Ammal had

mortgaged the suit property before the same Bank on 02.03.1974
for a sum of Rs. 15,000/- for settlement of the previous debt in the
above Bank taken by Kumarasami Mudaliar. I further submit that,
the said Parvathy Ammal had again mortgaged the suit property at
the same Bank on 15.09.1975 for a sum of Rs. 7,000/- & Rs.
8,000/- for her family expenditure and for debts purposes.
Thereafter the said property was redeemed from the said Bank on
30.09.1985 and the same was however not registered. Thereafter on
28.08.2016 we have cancelled the mortgage Deed through Deed of
Cancellation vide document No. 1026/2016 on the file of SRO,
Sowcarpet, Chennai.

5. I further submit that the said Mrs. Parvathi Ammal had died
intestate on 04.10.1999 without executing any settlement or
partition with respect to the suit property. I submit that thereafter
the Petitioners being the legal heir of Kumarasami Mudaliar had
repeatedly requesting the Respondents 1 to 3 to allot our shares
with respect to the suit property but the same was neglected. I
further submit that, the Petitioners herein are entitled to 4/8 th
shares in the suit property and since the Respondents herein had
not taken any steps for partition, we had issued a Legal Notice
dated 05.02.2016 to the Respondents 1 to 3 and even thereafter
they have not taken any steps to partition the suit property and
therefore we were constrained to institute the suit for partition in
O.S. No. 6161/2016 on the file of III Additional City Civil Court,
Chennai against the Respondents herein for partition of suit
schedule property into 8 equal shares.

6. I submit that, the Respondent herein had resisted the suit by

filimg a detailed Written Statement. Though the Respondents herein
had accepted the right of Kumarasami Mudaliar over the Suit
Schedule property, they had taken a plea that he had executed a
Will dated 24.09.1961 in and by which he had bequeathed the
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property in favor of the 1st Respondent Chandrasekar and

Janarthanam till their lifetime and thereafter to their Children. The
Respondent had further states that their Father had further
retained the Life interest over the property to their mother Parvathi
Ammal and sought for dismissal of the suit.

7. I submit that, 1st Petitioner was examined as PW1 and Exhibits

No. A1 to A6 was marked from our side. The 1 st Respondent herein
was examined as DW1 and marked Exhibits No. B1 to B7. However,
The Trial Court without going into consideration of facts and
circumstances of the case had dismissed our suit and aggrieved
against the same We are preferring the present Appeal. I submit
that we have raised our objections against the Judgment and
Decree as Grounds of Appeal of First Appeal and the same may be
read as part and parcel of this Affidavit.

8. I submit that, the Court below had failed to consider the fact that
the Respondent herein who claimed right title over the suit property
through a registered Will dated 24.09.1961 had not even marked
the said Document as evidence and therefore dismissing the suit
based on their said allegations that there is a registered Will is
totally frivolous. The Court below had further failed to take into
account the fact that, they have neither filed the said alleged Will
dated 24.09.1961 nor taken any steps to examine the witness of the
said Document to prove the said Will. The Court below had further
failed in Law in not considering the fact that the Respondents had
not proved the Will through which they claim Title over the suit
schedule property in the manner known to Law. The Court below
had erred in coming to a conclusion based on mere surmises that
there would be a Will executed by Kumarasami Mudaliar and by
which the Respondents derive their Title. The Court below had
blatantly erred in coming to a conclusion that the Will being a
registered one cannot be questioned by the Plaintiffs since it is
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presumed to be a genuine one under Section 17 of the Registration

Act.

9. I further submit that, when the Respondents herein have

themselves admitted in their Written Statement that the suit
property is a self-acquired property of Late Kumarasami Mudaliar
and since they have failed to mark the Will through which they
claim title the dismissing the suit based on said unmarked Will is
totally erroneous in law.

10. I submit that, taking advantage of the Judgment rendered by III

Additional City Civil Court, Chennai in O.S. No. 6161/2016, the
Respondents are now taking steps to alienate the Suit property and
in the present circumstances, if they succeed in their attempt I will
be put to irreparable loss and great hardship. Ends of Justice
therefore requires that this Hon’ble Court may be pleased to grant
an order of injunction restraining the Respondents from alienating
the Suit Schedule Properties pending disposal of the present appeal.

For all the reasons stated above It is therefore prayed that this
Hon’ble Court may be pleased to grant an order of interim
injunction restraining the Respondents, their men, agents or
anyone claiming under them from alienating and encumbering in
any manner dealing with the Suit Schedule Properties pending
disposal of the appeal or pass such further or other Orders in the
circumstances of the case and thus render Justice.

Solemnly affirmed at * BEFORE ME,

on this the day of March 2021 *
and signed his name in my *
presence after reading the contents *
of this affidavit herein ADVOCATE, CHENNAI
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IN THE HIGH COURT OF JUDICATURE AT MADRAS

(APPELLATE JURISDICTION)

CMP No. of 2021

In
A.S.No. of 2021

1. Mrs. U. Gowri,
W/o. Umapathi,
No. 54/120, Jagathambikai Nagar,
Padi, Chennai – 600 084.

2. S. Kumar,
S/o. A.J. Sambasivam,
No. 24/30, Vallam Bangaru Street,
Purasawakam,
Chennai – 600 007.

3. S. Maligha,
W/o. Sundaram,
No. 2/1, Subburayan 5th Street,
Namalwarpet,
Otteri, Chennai – 600 012.

4. R. Sumathi
W/o. K. Rajamohan,
New No. 10, Old No. 85,
South Mada Street,
Thiruvotriyur, Chennai – 600 019.

Petitioners/Appellants

Vs.

1. K. Chandrasekar,
S/o. Kumarasamy Mudaliar,
No. 1/127, Vithyanathan Mudali Street,
Chennai – 600 001.

2. J. Vijaya,
W/o. Late Janarathanan,
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3. J. Jayakumar,
S/o. Janarathanan

4. J. Sugantha,
W/o. Jayaganthan

All are residing at

No. 22, 2nd Narayana Street, Seven Wells,
Chennai – 600 001.

5. J. Rathi,
W/o. Jayaganesh,
No. 30, Jaganathan Nagar Main Road,
Arumbakkam, Chennai – 600 106.

6. J. Indra,
W/o. Jayavel,
No. 30, Jaganathan Nagar Main Road,
Arumbakkam, Chennai – 600 106.

7. S. Mani,
S/o. Sambantham,
No. 30, Jaganathan Nagar Main Road,
Arumbakkam, Chennai – 600 106.

8. S. Devaraj,
S/o. Sambantham,
No. 3, 3rd Street, Vallalar Nagar,
Thirumullaivayal, Vellanur,
Chennai – 600 062.

9. S. Pasupathy,
S/o. Sambantham,
No. 6, Bharathidasan Street,
Thiruvallur – 602 001.

10. K. Vatchala Devi,

W/o. Karunakaran, Old No. 50,
New No. 2, Vadaagarem,
Flat No. 7, Saravana Flats, 1st Street,
Choolaimedu, Chennai – 600 094.
Respondents/Respondents
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PETITION FILED UNDER ORDER 39 RULE 1 & 2 r/w Section

151 OF CPC
For all the reasons stated in the accompanying affidavit, it is
therefore humbly prayed that this Hon’ble Court may be pleased to
pass an order of Injunction restraining the Respondents, their men
or agent or anyone claiming under them from alienating,
encumbering, leasing or anyway creating encumbrance over the
schedule mentioned property in O.S.No. 6161/2016 on the file of III
Additional City Civil Court at Chennai pending disposal of the above
First Appeal and pass such further or other orders that this Hon’ble
Court may deem fit in the circumstances of the case.

DATED AT CHENNAI THIS THE DAY OF MARCH 2021.

Counsel for Appellants

SCHEDULE OF PROPERTY

All that piece and parcel of the Land and building bearing Door
No. 27/1, Vaithyanathan Mudali Street, Chennai – 600 001 within
the Registration District of Chennai and in the Sub-Registration
District of Sowcarpet, Chennai – 600 001 R.S. No. 1419 Part and
bounded on the

North By : Saint Xavier Street R.S. No. 1420

South By : Pannurangams House R.S. No. 1418
East By : Thiruvengadasamy Naidu House R.S. No. 1419/2
West By : Said Street Road 1

Measuring a Total extent of 1733 sq.ft.

DATED AT CHENNAI THIS THE DAY MARCH 2021

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Counsel for Appellants