MEMORANDUM OF GROUNDS OF APPEAL UNDER SEC.96 R/W. OR.

41
RULE.1 AND 2 OF CPC

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(Appellate Side Jurisdiction)

A.S.No. of 2024

against

O.S.No.4361 of 2019
(C.S.No.406 of 2014)

(On the file of Hon’ble IIIrd Additional Judge City Civil Court at Chennai)

H.Rajeswari@Alamelu,
W/o.Haribabu,
No.47, Portugese Church Street,
Seven Wells, Chennai-600 001. Appellant/Plaintiff

-Vs-
1. Mr.Srinivasan,
S/o.Muthukumar Chettiar,

2. M.Jamuna,
W/o.M.Srinivasan

Both are residing at

No.134/86, Pavalakaran Street,
Mannady, Chennai-600 001. Respondents/Defendants

The address of the appellant for service of all notices and processes is
that of their counsel M/s.J.R.K.Bhavanantham, K.Boopalan, S.Selvakumari,
Advocates, having office at No.21, Law Chambers, High Court, Chennai-600 104
and No.308, Navin Chandra House, Thambu Chetty Street, George Town,
Chennai-600 001.

The address of the respondent for service of all notices and processes is
that of above mentioned address.
 2

The above named appellant begs to prefer the memorandum of grounds

of appeal against the judgment and decree dated 27.03.2024 passed in
O.S.No.4361 of 2019(C.S.No.406 of 2014) (C.N.R.No.TNCH01-018560-2019)
on the file of Learned IIIrd Additional Judge, City Civil Court at Chennai among
other following grounds:-
1. The judgment of the lower court is contrary to law, against weight of
evidence and probabilities of the case.

2. The Lower court failed to note that Koothan Shanmugam Chettiar

executed settlement deed reserving life estate for himself and giving life estate
to his daughter Dhanabakkiammal after him.

2. The Lower court erred holding that the intention of settlor is absolutely
to give to male legal heir and not to female legal heirs and that the male dominant
society prevailed in the pre-independent period and that the settlor has executed
the settlement deed on 30.04.1940 prior to independence and that hence his
intention was to give the property only to male legal heirs and that the reason he
did not give absolute rights to his only daughter Dhanabakkiammal.

3. The Lower court failed to note that the Hindu Succession Act, 1956
came into force and the Class I Legal Heirs of male. Includes daughter, wife,
granddaughter, wife of granddaughter through predeceased son and daughter.

4. The Lower court erred in holding that in Ex.A8 also the testator has
given as mentioned specifically “Aan Sandhadhigal” and that the plural indicates
only male legal heirs to succeed to the property and that only in absence of male
legal heirs female legal heirs have to succeed and in the present case the
defendant the only female legal heir can suceed only in case of absence of male
legal heir and that hence the intention of the settlor namely Koothan Shanmuga
 3

Chettiar that the property shall devolve only upon male legal heirs and not on
female legal heirs.

5. Having observed that as per the intention of the settlor arrived for terms
of settlement deed dated 30.04.1940 the plaintiff is not entitled to succeed to the
estate of Muthukumara Chettiar.

6. The Lower court ought to have seen that the rule against perpetuity
U/S.14 of TP Act is applicable to the facts of the case and that the succession to
property cannot be postponed beyond one or more person.

7. The Lower Court ought to have seen that Muthukumar Chettiar died on
26.10.1982 and the succession opened on 26.10.1982 and that Muthukumara
Chettair wife Sugunammal died on 14.05.2003 the appellant’s share in the plaint
schedule property enlarges into half share from 14.05.2003 and that preference
conferred on male hierarchy cannot be extended beyond one or more person.

8. The Lower court erred in holding that the succession was opened on
26.10.1982 and that after death of Sugunammal the plaintiff should have claimed
her half share in suit property and that the plaintiff’s claimed to be in joint
possession along with defendant and that after 11 years after the demise of her
mother, the plaintiff executed sale agreement with Arif Khan marked as Ex.A7
dated 21.04.2014 and in the absence of production of EC knowledge of the
settlement deed dated 04.02.2011 cannot be imputed that suit ought not to have
been filed within 3 years from the date of settlement deed in the absence of
knowledge of the impugned settlement deed dated 04.02.20111 only when the
appellant entered the agreement of sale dated 21.04.2014 in Ex.A7 and the
necessity and circumstances warranted the appellant to verify the encumbrance
at the instance of the purchaser and that there the suit for declaration of
 4

settlement as nullity was well within 3 years period of nullity was well within 3
years period from the date of knowledge of the impugned settlement deed.

9. The Lower court grossly erred in interpreting contents of settlement

deed marked as Ex.A1 and specific portion as Ex.A8 with external aid and held
that after the demise of Ekambara Chettiar his male legal heir alone have to
succeed to the property his absolute estate with external aid.

10. The lower court erred in holding that the suit is barred by limitation.

11. The Lower court erred in refusing to decree for partition of the plaint
schedule property and declare the settlement deed dated 04.02.2011 purported
to have been executed by 1st defendant in favour of 2nd defendant as nullity and
not binding on the plaintiff and pass final decree though the suit is laid within 3
years from the date of knowledge of existence of settlement deed.

12. The Lower court ought to have seen that as per the provisions of
Sec.14 of Transfer of Property Act, the rule against perpetuity which is extracted
hereunder:-
“ 14. Rule of Perpetuity – No transfer of property can operate to create
an interest which is to take effect after the life-time of one or more persons living
at the date of such transfer, and the minority of some person who shall be in
existence at the expiration of that period, and to whom, if he attains full age, the
interest created is to belong”
Therefore the line of succession contemplated in the settlement deed cannot be
extended after lifetime of one or more making application only to male heirs.

It is therefore prayed that this Hon’ble court may be pleased to set aside
the judgment and decree dated 27.03.2024 passed in O.S.No.4361 of 2019 on
 5

the file of III Additional Judge, City Civil Court at Chennai and decree the suit
render justice
Dated at Chennai on this day of August 2024

Appellant Counsel for Appellant

MEMO OF VALUATION
Value of the suit Rs.50,01,000/-
Court Fee paid
U/S.37(2) and U/S.25(d) Rs.1,076/-
Value of appeal Rs.50,01,000/-
Court Fee paid Rs.1,076/-
Dated at Chennai on this day of August 2024

Counsel for Appellant