IN THE COURT OF THE HON’BLE DISTRICT JUDGE OF COIMBATORE

O. S. No.         OF 2018

Mrs.G.Abhirami Sivashankar                     ---Plaintiff

-Vs-
1.    M.Sivashankar
2.    N.Gopalakrishnan                        ----Defendants

PLAINT FILED UNDER ORDER VII RULE 1 OF C.P.C

I. PLAINTIFF

Mrs.G.Abhirami Sivashankar, Wife of Sivashankar, Daughter of

N.Gopalakrishnan, Hindu, aged about 41 years, residing at Old Door No.166, New
No.66, Sasthiri Road, No.2, L.I.C. Colony, Perur Road, Coimbatore - 641 026.

The address for service of the plaintiff is same as above and cares of her
counsel A. KUPPURAJ, B.Sc., B.L., Advocate, Coimbatore- 18.

II. DEFENDANTS

1. M.Sivashankar, Son S.Murugesan, Hindu, aged about 46 years, working at

Door No.66/5-25, H.M. Vibha Towers, 3 rd Floor, Luskar, Hosur Road, Adugodi,
Bangalurur- 5600 301.

2. N.Gopalakrishnan, Son of (Late) S.Nanjappa Gowder, Hindu, aged about 75

years, residing at Old Door No.166, New No.66, Sasthiri Road, No.2, L.I.C. Colony,
Perur Road, Coimbatore - 641 026.

The address for service for defendants is the same as above.

III. It is most humbly submitted that the plaintiff is wife of the 1 st defendant
and the 2nd defendant is the father of the plaintiff.

IV. I further submit that the plaintiff and the first defendant fell in love and
there was strong objection from the family of the first defendant and the
marriage between them was solemnised with the help of the second defendant,
who is the father-in-law of the first defendant. After the marriage, the 1st
defendant and the plaintiff were living in Coimbatore and later at Lucknow and
presently the first defendant is residing separately at Bangalore.  When they were
living in Coimbatore, the plaintiff and the 1st defendant was staying in the 2nd
defendant’s house as joined family. As 2nd defendant had no son’s, he treated the
1st defendant as his son and reposing confidence on the conduct of the 1st
defendant.
 -2-

V. I further submit that the reason for the first defendant and the plaintiff
living along with the second defendant was that at the time of marriage, the 1 st
defendant was employed in a Private Company and he was getting a meagre
monthly salary. Knowing the state of 1st defendant, the plaintiff started to work to
support of the 1st defendant. That apart, the 2nd defendant was also at the time of
marriage was doing cotton business, getting handsome remuneration in the name
of business commission. Thus, with the income of both the plaintiff and the first
defendant and with the able support of the second defendant, the first defendant
and the plaintiff were running their married life. Out of wedlock between the first
defendant and the plaintiff, on 7th January 2008, the plaintiff has given a birth to
baby boy and he is named Maser S.S Dakshesh Skandan is now aged about 10
years. The 1st defendant and the plaintiff resided together along with the 2 nd
defendant in various places except the suit property up to 31 st March 2016.

VI.    The plaintiff further submits that in the meantime, during the month of June,
2005, it was decided between the plaintiff and defendants to purchase a
residential house in the Coimbatore City, keeping in mind the welfare and benefit
of the plaintiff and defendants. As there was no enough funds to purchase a
residential house, in order to mobilise the funds, the second defendant has come
forward to sell away the property owned and possessed by him for a sale
consideration of Rs.4,50,000/- vide Sale Deed, dated 15.12.2005, registered as
Document No.5474/2005 before the District Registrar Office, Coimbatore. This
was the 2nd defendant’s father’s property.

VII.    The plaintiff further submits that after the alienation of the property of the
second defendant, the plaintiff and defendants were searching for fetching a
residential house of their chose and it took more than 9 months for selecting a
residential house of their choice, which is more fully described in Schedule
hereunder and hereafter called as “the suit property”. Lastly, on 06.10.2016,
plaintiff and defendants have agreed to enter into an Sale Agreement by the 1 st
defendant, on behalf of the plaintiff and 2nd defendant, with one Meenakshi and
her family members and the sale consideration was fixed to be Rs.16,00,000/- and
the Advance amount of Rs.1,20,000/- thereto was paid by the plaintiff in cash, out
of the sale consideration she got by selling the second defendant’s property,
though the Sale Agreement came to be entered in the name of the 1 st defendant.
The original cost of the house was 19 lacs + Registration Fee of 1.3 lacs + 35
Thousand for buying paid to the broker + renovation work of 2.5 lacs (as it was a
30 years only). To help all this, one more land of 1.5 lacs also was sold by 2 nd
defendant to support the plaintiff and 1 st defendant to buy the house. Thus, the
plaintiff has paid Rs.7.50 Lakhs for purchasing the suit property, excluding the
amount by way of availing a loan from the HDFC Bank, during the material times.

VIII. The plaintiff further submits that after entering into the Sale Agreement in
the name of 1st defendant by the plaintiff and 2nd defendant, financial assistance
 -3-

was sought for from the HDFC Bank in the name of the 1st defendant to the tune
of Rs.14,80,000/-. In the above said loan transaction, the plaintiff has been
arrayed as co-borrower for purchasing the suit property in Loan Account
No.3520117652. The repayment of the loan amount has also been shared by
plaintiff and out of her father’s savings for the benefit of the plaintiff. The plaintiff
and the 2nd defendant had entrusted the loan due amounts by way of cash and by
transferring the amounts to the Savings Account of the 1 st defendant, which he
would utilise for paying the loan instalment dues.

IX. The plaintiff further submits that after availing of above said loan, the loan
was discharged out of the income derived by the plaintiff and out of the savings
and hard earned money of the second defendant. The plaintiff used to pay the
loan instalment amounts towards discharge of loan by way of transferring money
from the plaintiff’s Account to the Account of the 1 st defendant and amounts will
be debited from the Account of the 1 st defendant towards discharge of loan. That
apart, on several occasions, amounts were deposited in the 1 st defendant’s
Account by way of cash by the second defendant for the welfare and well being of
his son-in-law and daughter. Further, the Non-Judicial Stamp Papers and the
Registration Fee for the purchase of suit property were solely borne out by the
plaintiff and the second defendant with the aid of the sale consideration, which
they received as stated supra. Thus, the suit property can only be construed as
the Sreedhana property of the plaintiff given by the 2nd defendant.

X.    The plaintiff further submits that after the purchase of suit property, till date,
the same is in joint and constructive possession and enjoyment of the plaintiff and
2nd defendant alone. The 1st defendant has not been in possession and enjoyment
of the suit property, at any point of time. The plaintiff and 2 nd defendant are
maintaining the property and the rates and taxes, payable in respect of the suit
property, to the Local Body, Tamil Nadu Generation of Electricity and Distribution
Corporation and other statutory Authorities, have been paying then and there by
the plaintiff and 2nd defendant, out of their own funds, in the name of the 1 st
defendant. The plaintiff and the second defendant has spent several lakhs for
renovating the building in the suit property and they have been spending
amounts then and there for maintaining the same as now the building is of 40 yrs
old. The plaintiff and the 2nd defendant are inducting the tenants and collecting
rents from the tenants, who are in occupation of the portions of the suit property,
till date; and the entire rental income derived from the suit property was being
deposited into the Bank Account viz., Porkuviyal Thittam (bghw]Ftpay; jpl]lk;) of
the 1st defendant, which, he has with The Tamilnad Mercantile Bank, till 2016.

XI.    The plaintiff further submits that the plaintiff is one of the co-owners of the
suit property along with defendants. Therefore, the plaintiff is entitled for 1/3 rd

-4-
share in the suit property as the absolute owner thereof. The alleged Sale Deed,
dated 26.10.2006 stands in the name of the 1 st defendant cannot be termed and
construed to be a property purchased by the 1 st defendant solely. The plaintiff
and the 2nd defendant have agreed for purchase of the suit in the name of the 1 st
defendant for the joint welfare and well being of the plaintiff and defendants and
the Sale Deed came to be executed in the name of the 1 st defendant, only in a
fiduciary capacity.     

XII. The plaintiff further submits that from 31st March 2016 onwards, certain
family disputes and misunderstandings arose between 1st defendant and the
plaintiff. Further, the 1st defendant was not in possession and enjoyment of the
suit property as he is employed in Bengaluru City. As the 1 st defendant did not take
care of the plaintiff and his son, the plaintiff was constrained to file a case, seeking
maintenance from the 1st defendant in M.C.No.102/2017 on the file of the Hon’ble
Additional Family Court, Coimbatore. On the other hand, with false and frivolous
allegations, the 1st defendant has chosen to file petition, seeking divorce from the
plaintiff, in H.M.O.P. No.138/2016 on the file of the Hon’ble Additional Family
Court, Coimbatore. Both the above said cases are pending for adjudication. The
plaintiff herein has entered appearance in the above said H.M.O.P. No.138/2016
filed by the 1st defendant and vehemently contesting the same. The allegations
made in the above said H.M.O.P. No.138/2016 are all false, frivolous and baseless,
except those that are specifically admitted by the plaintiff. Further, the plaintiff has
filed a petition in H.M.O.P. No.782/2017 for “restitution of conjugal rights” and the
same is pending enquiry. In the given circumstances, the plaintiff apprehends that
the 1st defendant would alienate and encumber the suit property at any time by
hook or crook and thus, the 1st defendant is trying to defraud plaintiff, her son and
the 2nd defendant of their share in the suit property.

XIII. The plaintiff further submits that the 1st defendant, taking advantage of the
fact that the second defendant is an aged person and he is in hapless and helpless
condition coupled with the fact that the plaintiff is an innocence woman, is
making hectic and clandestine attempts to sell away the suit property to third
parties, suppressing the 2/3rd share of the plaintiff and the 2nd defendant. The 1st
defendant has no right or whatsoever to alienate and encumber the suit property,
with the consent and concurrence of the plaintiff and the 2 nd defendant as the suit
property has all along been treating only as a joint family property. Further, there
is abundant evidence available to prove that at the material times, the 1st
defendant had no financial capacity or wherewithal to purchase the suit property
for the above said huge amount. Equally, there is ample evidence to prove that
the plaintiff and the 2nd defendant have extended their support monetarily to the
1st defendant at the material times.

-5-
XIV. The plaintiff further submits that the plaintiff tried to pay the remaining
loan amount of Rs 1.45 lacs and release the suit property document. As the
plaintiff is the co-applicant, sent a mail to HDFC bank as well as a Legal Notice on
behalf of the plaintiff stating that, they should not give the document without
plaintiff’s concurrence. They also agreed to it and withheld the document from
Nov 2016 to 3rd May 2018. When the bank lawfully agreed to withhold the
document, suddenly due to some unknown pressure, the title deed of the suit
property has been handed over to the 1st defendant on 3rd May 2018 without
plaintiff’s knowledge. The handing over of Title Deeds by the Bank without the
knowledge of the plaintiff is highly illegal and unlawful, despite the mail and the
Legal Notice sent by the plaintiff. The 1 st defendant has got the documents from
the Bank in a hurried and hasty manner so as to encumber and alienate the suit
property on the back of the plaintiff.

XV. The plaintiff further submits that whenever the plaintiff happened to meet
the 1st defendant during the Court hearing dates, the plaintiff and the 2 nd
defendant would ask the 1st defendant for amicable division of the suit property
and allotment of their 2/3rd share. However, the 1st defendant would not mind it
and he is acting with an ulterior motive to usurp and appropriate the entire
properties, leaving the plaintiff and the 2nd defendant. In the above said
circumstances, the plaintiff is left with no other option except to knock the doors
of this Hon’ble Court, seeking a relief of “partition” by dividing the suit property
into 3 (three) equal shares by metes and bounds and allot 1 (one) such share to
the plaintiff. After instituting the aforesaid proceedings, the plaintiff reliably
learnt that the 1st defendant has been trying to alienate the Schedule mentioned
property to third parties, in order defeat the plaintiff’s lawful right and his 1/3 rd
share in the suit property. Hence the present suit is preferred.

XVI. The cause of the action for the suit arose on 10.03.2003, when there was a
love marriage between the plaintiff and 1st defendant took place; subsequently,
when the plaintiff and 1st defendant led their married life in the residence of the
2nd defendant jointly; subsequently, on 7th January 2008, when the plaintiff has
given a birth to a male child; subsequently, when the plaintiff and defendants
decided to purchase a house property in Coimbatore City for their family welfare
and well being; on 15.12.2005, when the 2 nd defendant sold away his property for
purchasing the suit property; subsequently, when the plaintiff and defendants
availed a Loan from the HDFC Bank for rest of purchasing the suit property;
subsequently, when the 2nd defendant has paid the Advance amount for
purchasing the suit property; on 06.10.2006, when the plaintiff and defendants
agreed to purchase the suit property in the name of the 1 st defendant in the
fiduciary capacity for the family benefit; subsequently, on the dates, when the

-6-
repayment of the loan amount was by the plaintiff and 2 nd defendant by
transferring/remitting cash to the Account of the 1 st defendant; subsequently,
when the plaintiff and 2nd defendant are alone in joint possession and enjoyment
of the suit property, till date; subsequently, on the dates, when the plaintiff and
2nd defendant inducted the tenants in the suit property and carried out renovating
works in the suit property, out of their savings; subsequently, when there was a
family dispute arose between the plaintiff and 1st defendant and they are litigating
each other in the Additional Family Court, Coimbatore; subsequently, on the
dates, when the 1st defendant clandestinely obtained the Title Deeds from the
Bank concerned; subsequently, the 1 st defendant, taking advantage of the fact
that the plaintiff and the 2nd defendant is in a hapless and helpless condition and
embolden by the possession of the Title Dees with him, is trying to alienate and
encumber the suit property by hook or crook, by suppressing the plaintiff and 2 nd
defendant’s 2/3rd share in the suit property at N.G.G.O. Colony, Coimbatore,
where the suit property is situated, within the territorial jurisdiction of this
Hon’ble Court.

XVII. For the purpose of Court Fee and jurisdiction of this Hon’ble Court, the suit
is valued at Rs.11,00,000/- wherein the notional value of the Court Fee for the
relief of “partition” Rs.5,000/- has been paid under Section 37(2) and the suit is
valued for the relief of “permanent injunction” is valued at Rs.1,000/- whereas
the appropriate Court Fee of Rs.30/- has been paid under Section 27(c) of the
TNCF and SV Act – 1955 as amended up to date.

DETAILS OF VALUATION

1.Total notional market value of the suit property -Rs.33,00,000/-

In this, the Plaintiffs’ 1/3rd share Value is -Rs. 11,00,000/-

Court fee paid u/S. 37 (2) of TNCF & CF Act --Rs. 5,000/-

2. Value of this suit for the relief of the permanent

injunction, restraining the defendants and their agents
claiming under them from in any manner whatsoever
encumbering or alienating the suit properties --Rs.` 1,000/-

Court fee paid u/S 27( c) of TNCF & CF Act -- Rs. 30/-
----------------------------
Total Value of the suit --Rs.11,01,000/-

Total Court fee --Rs. 5,030/-

-7-
XVII. The plaintiff therefore prays that this Hon’ble Court may be pleased to pass
a preliminary decree, and judgment against the defendants:-

(a). For partition, directing division of the suit property into three equal
shares and allot one such share to the plaintiff by metes and bounds
with reference to good and bad soil;

(c). For passing a final decree in terms of preliminary decree by

appointing an Advocate Commissioner to divide the suit property in
terms of the preliminary decree;

(d). Granting permanent injunction restraining the 1st defendant, his

agents, servants and any persons claiming under him from in any
manner whatsoever encumbering or alienating the suit property with
specific boundaries of the same;

(e). directing the defendants to pay the costs of this suit; and

(f). granting such other further relief, deemed, fit, proper, just and
necessary in the circumstances of the case and thus render justice.

ADVOCATE FOR PLAINTIFF PLAINTIFF

VERIFICATION

I, the above named plaintiff, do hereby solemnly affirm and declare that the
above stated facts are true and correct to the best of my knowledge and belief
and I have signed this verification at Coimbatore on 04.06.2018.

PLAINTIFF

SCHEDULE OF PROPERTY

nfhaKj]J}h] hpoL/ bghpaehaf]fd;ghiak; rg]o/ nfhaKj]J}h] khtl]lk;/

nfhaKj]J}h] (tlf]F) tl]lk;/ FUlk;ghisak; fpuhkk;/ f.r.141/3 be. fhiyapy; N.G.G.O.
Rural Co-operative Housing Society Limited
r';fj]jhuhy; nymt[l] bra;J kidg]gphpt[fshf gphpj]Js;sjpy; ehsJ njjpapy;

-8-
j';fSf]F fpiuak; bra;J bfhLf]Fk; irl] vz; 152-f]F brf]Fge;jpa[k;/ mst[fSk;.

tlg[wk; irl] be.111

fpHg[wk; irl] be.151

bjd;g[wk; 40 mo nuhL

nky;g[wk; irl] be.153

,jd; kj]jpapy;/

fpHnkyo ,Ug[wKk; 54

bjd;tlyo ,Ug[wKk; 110

Mf ,jw]F bkhj]jk; 5940 rJuofs; (my;yJ) 13 brd;l] 277 rJuofs; bfhz;l kid $hfht[k;/
nkw]go $hfhtpy; 1788 rJuofspy; fl]lg]gl]Ls;s R.C.C. fl]olKk; mjd; rfy fjt[/ epyt[/
fl]Lf]nfhg]g[/ Kd;thry;/ vyf]l]hpf] gpl]o';!;/ mjd; rh]tP!; fbdf]#d; oghrpl] bjhif/
jz;zPh] FHha;fs;/ gps#; mt[l] ff]T!;/ 315 R.ft. fhk;gt[z;L RtUk;/ fphpy; nfl] 1k;
kw]Wk; khogofSk; rfpjk;.

fjt[ vz;fs; 139/1/ 139

giHa thptpjpg]g[ vz;fs; 508/ 509

Mde;j ma;a';fhh] tPjp/ S.C. No.94 . (V.K. Nagar).

nkw]go brhj]J FUlk;ghisak; fpuhkk; mnrhfg[uk; g";rhaj]J vy;iyf]Fl]gl]lJ.

PLAINTIFF

VERIFICATION

I, the above named plaintiff, do hereby solemnly affirm and declare that the
above said Schedule of property is correct and true to the best of my knowledge
and belief and I have signed this verification at Coimbatore on 04.06.2018.

PLAINTIFF

-9-

LIST OF DOCUMENTS FILDED UNDER ORDER VII RULE 14(3) OF C.P.C

1. 15.12.2005 Xerox copy of Sale deed executed by the 2nd defendant in
favour of one D.Sivakumar.

2. 26.10.2006 Xerox copy of the alleged Sale deed stands in the 1stdefendant.

3. -- Xerox copy of alleged petition filed by the 1st defendant in

H.MO.P. No. 138/2016 on the file of the Hon’ble
Additional family Court, Coimbatore for divorce.

4. 29.05.2017 Xerox copy of petition filed by the plaintiff in H.MO.P.

No.782/2017 on the file of the Hon’ble Additional family
Court, Coimbatore for restitution of conjugal rights.

5. 29.05.2017 Xerox copy of petition filed by the plaintiff in M.C No.102/2017

on the file of the Hon’ble Additional family Court, Coimbatore
for her son’s maintenance.

6. 28.05.2017 Copy of legal notice sent by the plaintiff to the SRO,

Periyanaickenpalayam.

7. 17.05.2018 Original Electricity consumption charges receipt in S.C. No.

1178, which was paid by the 2nd defendant, in respect of
the suit property.

8. 05.05.2018 Original Electricity consumption charges receipt in S.C. No. 94,

which was paid by the 2nd defendant, in respect of the
suit property.

9. 30.08.2017 Original Water consumption charges receipt, which was paid

by the 2nd defendant, in respect of the suit property.

10. 30.08.2017 Original Property Tax receipt, which was paid by the 2nd
defendant, in respect of the suit property.

ADVOCATE FOR PLAINTIFF

ADVOCATE FOR PLAINTIFF

IN THE COURT OF THE HON’BLE

DISTRICT JUDGE OF COIMBATORE

O. S. No. OF 2018

Mrs.G.Abhirami Sivashankar

---Plaintiff

-Vs-
1. M.Sivashankar
2. N.Gopalakrishnan

----Defendants

PLAINT FILED UNDER ORDER VII

RULE 1 OF C.P.C
 Pre on: 06.06.2018

Ecls: Vakalath - 1 No
Documents - Nos
Proof affi - 1 No
Valuation slip -2 Nos
Batta with encls -9 sets
Petn & affi - 1 No.

ADDRESS FOR SERVICE

A. KUPPURAJ, B.Sc., B.L.

Advocate
No. 10-E, First Floor
State Bank Road
Coimbatore – 18.
85086-77788.

IN THE COURT OF THE HON’BLE DISTRICT JUDGE OF COIMBATORE

I.A. No. OF 2018

O. S. No. OF 2018

Mrs.G.Abhirami Sivashankar ---Petitioner/Plaintiff

-Vs-
1. M.Sivashankar
2. N.Gopalakrishnan ---Respondents/Defendants

AFFIDAVIT
I, Abhirami, Wife of Sivasankaran, Daughter of N.Gopalakrishnan, Hindu,
aged about 41 years, residing at Old Door No.166, New No.66, Sasthiri Road,
No.2, L.I.C. Colony, Perur Road, Coimbatore - 641 026 , do hereby solemnly affirm
and sincerely state as follows:-

1. I am the deponent herein and plaintiff in the above main suit. I beg to submit that
I have filed the captioned original suit against the respondents for partition and
permanent injunction, and for other reliefs. I crave leave of this Court that the
averments made in the plaint may be read as part and parcel of this affidavit.

2. I further submit that I expressly reserve my right (without prejudice of the

connected suit claims) to file a separate suit for any omitted reliefs as against the
respondents herein in future, if any; in view of the fact that, if this Hon’ble Court is
declined my main relief for partition and possession. It is therefore, necessary and in the
interest of justice, that this Hon’ble Court may be pleased to grant me leave to file a
separate suit at a later stage for the any omitted reliefs etc in respect of the suit
property against the respondents herein. Unless this petition is allowed, I will be put to
great loss and hardship.

Therefore, it is just, necessary and expedient that this Hon’ble Court may be
graciously pleased to grant leave to file a separate suit against the respondents herein at
a later stage in respect of alternative claims/omitted reliefs if any, in respect of the suit
property etc; and pass suitable orders and thus render justice.

DEPONENT

Solemnly affirmed and signed Before me at Coimbatore

on 04.06.2018 Advocate, Coimbatore – 18.

IN THE COURT OF THE HON’BLE

DISTRICT JUDGE OF COIMBATORE

I. A. No. OF 2018

O. S. No. OF 2018
 AFFIDAVIT

IN THE COURT OF THE HON’BLE DISTRICT JUDGE OF COIMBATORE

I.A. No. OF 2018

O. S. No. OF 2018

Mrs.G.Abhirami Sivashankar                     ---Plaintiff

-Vs-
1.    M.Sivashankar
2.    N.Gopalakrishnan                        ----Defendants

PETITION FILED UNDER ORDER II RULE 2 OF C. P. C.

I.PETITIONER/ PLAINTIFF
 Mrs.G.Abhirami Sivashankar, Wife of Sivasankaran, Daughter of
N.Gopalakrishnan, Hindu, aged about 41 years, residing at Old Door No.166, New
No.66, Sasthiri Road, No.2, L.I.C. Colony, Perur Road, Coimbatore - 641 026.

The address for service of the petitioner/plaintiff is same and cares of their
counsel A. KUPPURAJ, B.Sc., B.L., Advocate, Coimbatore- 18.

II. RESPONDENTS/DEFENDNATS

1. M.Sivashankar, Son S.Murugesan, Hindu, aged about 46 years, working at

Door No.66/5-25, H.M. Vibha Towers, 3 rd Floor, Luskar, Hosur Road, Adugodi,
Bangalurur- 5600 301.

2. N.Gopalakrishnan, Son of (Late) S.Nanjappa Gowder, Hindu, aged about 75

years, residing at Old Door No.166, New No.66, Sasthiri Road, No.2, L.I.C. Colony,
Perur Road, Coimbatore - 641 026.

The address for service for respondents/defendants 1&2 is the same as above.

III. For the reasons stated in the accompanying affidavit, without prejudice, the
petitioners humbly pray that this Hon’ble Court may kindly be pleased to grant leave to
file a separate suit against the respondents herein at a later stage in respect of
alternative/omitted reliefs, if necessary etc; and pass suitable orders and thus render
justice.

ADVOCATE FOR PETITIONER/PLAINTIFF

IN THE COURT OF THE HON’BLE

DISTRICT JUDGE OF COIMBATORE

I. A. No. OF 2018

O. S. No. OF 2018

Mrs.G.Abhirami Sivashankar

--- Petitioner/Plaintiff

-Vs-

1. M.Sivashankar
2. N.Gopalakrishnan
 --- Respondents/Defendants 1& 2

PETITION FILED UNDER ORDER II

RULE 2 OF C.P.C

Pre on: 06.06.2018

ADDRESS FOR SERVICE

A. KUPPURAJ, B.Sc., B.L.

Advocate
No. 10-E, First Floor,
State Bank Road
Coimbatore – 18.
85086-77788

IN THE COURT OF THE HON’BLE DISTRICT JUDGE OF COIMBATORE

I.A. No. OF 2018

O. S. No. OF 2018

Mrs.G.Abhirami Sivashankar ---Petitioner/Plaintiff

-Vs-
1. M.Sivashankar
2. N.Gopalakrishnan ---Respondents/Defendants

AFFIDAVIT
I, Mrs.G.Abhirami Sivashankar, Wife of Sivasankaran, Daughter of
N.Gopalakrishnan, Hindu, aged about 41 years, residing at Old Door No.166, New
No.66, Sasthiri Road, No.2, L.I.C. Colony, Perur Road, Coimbatore - 641 026 , do
hereby solemnly affirm and sincerely state as follows:-
1. I am the deponent herein and plaintiff in the above main suit. I beg to submit that
I have filed the captioned original suit against the respondents for partition, permanent
injunctions and for other reliefs. I crave leave of this Court that the averments made in
the plaint may be read as part and parcel of this affidavit.

2. The amended Civil Procedure Code enjoins a Mandatory Provision that the
person verifying the pleadings in the every newly instituted suit shall also furnish an
affidavit on proof in support thereof. I submit that my pleadings in the plaint are in
perfect order and contain complete, full and essential particulars in all respects. There is
no deficiency of any matter materials in any manner whatsoever. I have compiled with
the provision of Order IV Sub Rules 1 and 2.

3. I submit that our reliefs claimed and facts set out in the plaint and the documents
reliefs upon the plaint are precise and genuine in nature. I have not infringed any of the
provisions in the Civil Procedure Code in the newly instituted suit.

I therefore pray that the plaint instituted today may be entertained and taken on
file for being heard and reliefs prayed for may be granted.

Solemnly affirmed and singed

before me at Coimbatore Deponent
on 04.06.2018 Advocate, Coimbatore -18.

IN THE COURT OF THE HON’BLE

DISTRICT JUDGE OF
COIMBATORE

O. S. No. OF 2018
 AFFIDAVIT OF PROOF IN
SUPPORT OF THE PLAINT FILED
BY THE PLAINTIFF UNDER
ORDER 6 RULE 15 (IV) OF CIVIL
PROCEDURE CODE AS
AMENDED

IN THE COURT OF THE HON’BLE DISTRICT JUDGE OF COIMBATORE

I.A. No. OF 2018

O. S. No. OF 2018

Mrs.G.Abhirami Sivashankar ---Petitioner/Plaintiff

-Vs-
1. M.Sivashankar
2. N.Gopalakrishnan ---Respondents/Defendants

PETITION FILED UNDER ORDER XXXIX RULES 1 AND 2 OF C.P.C

I.PETITIONER/ PLAINTIFF

Mrs.G.Abhirami Sivashankar, Wife of Sivashankaran, Daughter of

N.Gopalakrishnan, Hindu, aged about 41 years, residing at Old Door No.166, New
No.66, Sasthiri Road, No.2, L.I.C. Colony, Perur Road, Coimbatore - 641 026.

The address for service of the petitioner/plaintiff is same and cares of her counsel
A. KUPPURAJ, B.Sc., B.L., Advocate, Coimbatore- 18.

II. RESPONDENTS/DEFENDNATS

1. M.Sivashankar, Son S.Murugesan, Hindu, aged about 46 years, working at

Door No.66/5-25, H.M. Vibha Towers, 3 rd Floor, Luskar, Hosur Road, Adugodi,
Bangalurur- 5600 301.

2. N.Gopalakrishnan, Son of (Late) S.Nanjappa Gowder, Hindu, aged about 72

years, residing at Old Door No.166, New No.66, Sasthiri Road, No.2, L.I.C. Colony,
Perur Road, Coimbatore - 641 026.

The address for service for respondents/defendants 1&2 is the same as above.

III. For the reasons stated in the accompanying affidavit, the petitioner humbly
prays that this Hon’ble Court may kindly be pleased to pass an order of
temporary injunction restraining the respondent, his agents, servants and any
persons claiming under him, from in any manner encumbering or alienating the
suit property to third parties with specific boundaries until the disposal of suit;
and also to grant an order of AD INTERIM INJUNCTION for the above said relief,
pending disposal of the Interlocutory Application filed in support of this Affidavit;
and thus, render justice.

ADVOCATE FOR PETITIONER/PLAINTIFF

SCHEDULE OF PROPERTY

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ADVOCATE FOR PETITIONER/PLAINTIFF

IN THE COURT OF THE HON’BLE

DISTRICT JUDGE OF
COIMBATORE

I.A. No. OF 2018

O.S. No. OF 2018

Mrs.G.Abhirami Sivashankar
 --- Petitioner/Plaintiff

-Vs-
1. M.Sivashankar
2. N.Gopalakrishnan

--- Respondents/Defendants 1& 2

PETITION FILED UNDER ORDER

XXXIX RULES 1 AND 2 OF C.P.C

Pre – on: 06.06.2018

Address for service:

A. KUPPURAJ, B.Sc., B.L.,

Advocate
No. 10-E, First Floor
State Bank Road
Coimbatore – 18.
85086-77788.

IN THE COURT OF THE HON’BLE DISTRICT JUDGE OF COIMBATORE

I.A. No. OF 2018

O. S. No. OF 2018

Mrs.G.Abhirami Sivashankar ---Petitioner/Plaintiff

-Vs-
1. M.Sivashankar
2. N.Gopalakrishnan ---Respondents/Defendants
 AFFIDAVIT
I, G.Abhirami Sivashankar, Wife of Sivashankaran, Daughter of
N.Gopalakrishnan, Hindu, aged about 41 years, residing at Old Door No.166, New
No.66, Sasthiri Road, No.2, L.I.C. Colony, Perur Road, Coimbatore - 641 026 , do
hereby solemnly affirm and sincerely state as follows:-

1. I am the deponent herein and plaintiff in the above main suit. I beg to submit that
I have filed the captioned original suit against the respondents for partition, permanent
injunctions and for other reliefs. I crave leave of this Court that the averments made in
the plaint may be read as part and parcel of this affidavit.

2. I submit that the 1st respondent is my husband and the 2nd respondent is my
father.

3. I submit that I was fallen in love with 1 st respondent and there was strong
objection from the family of the first respondent and the marriage between us
was solemnised with the help of the second respondent, who is the father-in-law
of the first respondent. After the marriage, myself and 1st respondent were living
in Coimbatore and later at Lucknow and presently the 1 st respondent is residing
separately at Bangalore.  When we were living in Coimbatore, I and the 1 st
respondent was staying in my father’s house as joined family. As my father had
no son’s, he treated the 1st respondent as his son and reposing confidence on the
conduct of the 1st respondent.

4. I further submit that the reason for, I and the first respondent living along
with the second respondent was that at the time of marriage, the 1 st respondent
was employed in a Private Company and he was getting a meagre monthly salary.
Knowing the state of 1st respondent, I started to work to support of the 1st
respondent. That apart, the 2nd respondent was also at the time of marriage was
doing cotton business, getting handsome remuneration in the name of business
commission. Thus, with the income of me and the first respondent and with the
able support of the second respondent, I and the first respondent were running
their married life. Out of wedlock between the first

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respondent and me on 7th January 2008, I have given a birth to baby boy and he is
named Maser S.S Dakshesh Skandan is now aged about 10 years. I and the 1 st
respondent resided together along with the 2 nd respondent in various places
except the petition mentioned property up to 31st March 2016.

5.    I further submit that in the meantime, during the month of June, 2005, it was
decided between me and the respondents to purchase a residential house in the
Coimbatore City, keeping in mind the welfare and benefit of us. As there was no
enough funds to purchase a residential house, in order to mobilise the funds, my
father has come forward to sell away the property owned and possessed by him
for a sale consideration of Rs.4,50,000/- vide Sale Deed, dated 15.12.2005,
registered as Document No.5474/2005 before the District Registrar Office,
Coimbatore. This was the ancestral property for us.

6.    I further submit that after the alienation of the property of the second
defendant, I and the respondents were searching for fetching a residential house
of our chose and it took more than 9 months for selecting a residential house of
our choice, which is more fully described in Schedule hereunder and hereafter
called as “the petition mentioned property”. Lastly, on 06.10.2016, I and
respondents have agreed to enter into an Sale Agreement by the 1 st respondent,
on behalf of me and 2nd respondent, with one Meenakshi and her family members
and the sale consideration was fixed to be Rs.16,00,000/- and the Advance
amount of Rs.1,20,000/- thereto was paid by me in cash, out of the sale
consideration I got by selling the second respondent’s property, though the Sale
Agreement came to be entered in the name of the 1 st respondent. The original
cost of the house was 19 lacs + Registration Fee of 1.3 lacs + 35 Thousand for
buying paid to the broker + renovation work of 2.5 lacs (as it was a 30 years only).
To help all this, one more land of 1.5 lacs also was sold by 2 nd respondent to
support me and 1st respondent to buy the house. Thus, I and 2 nd respondent have
paid Rs.7.50 Lakhs for purchasing the suit property, excluding the amount by way
of availing a loan from the HDFC Bank, during the material times.

7. I further submit that after entering into the Sale Agreement in the name of
1st respondent by me and 2nd respondent, financial assistance was sought for from
the HDFC Bank in the name of the 1st respondent to the tune of Rs.14,80,000/-.
In the above said loan transaction, I have been arrayed as co-borrower for
purchasing the petition mentioned property in Loan Account No.3520117652. The
repayment of the loan amount has also been shared by me and out of my father’s
savings for the benefit of me. I and the 2 nd respondent had entrusted the loan due
amounts by way of cash and by transferring the amounts to the Savings Account
of the 1st respondent, which he would utilise for paying the loan instalment dues.

8. I further submit that after availing of above said loan, the loan was
discharged out of the income derived by me and out of the savings and hard
earned money of the second respondent. I used to pay the loan instalment
amounts towards discharge of loan by way of transferring money from my
Account to the Account of the 1st respondent and amounts will be debited from
the Account of the 1st respondent towards discharge of loan. That apart, on
several occasions, amounts were deposited in the 1 st respondent’s Account by
way of cash by the second respondent for the welfare and well being of his son-
in-law and me. Further, the Non-Judicial Stamp Papers and the Registration Fee
for the purchase of petition mentioned property were solely borne out by me and
the second respondent with the aid of the sale consideration, which they received
as stated supra. Thus, the petition mentioned property can only be construed as
the Sreedhana property of me given by the 2nd respondent.

9.    I further submit that after the purchase of petition mentioned property, till
date, the same is in joint and constructive possession and enjoyment of me and
2nd respondent alone. The 1st respondent has not been in possession and
enjoyment of the petition mentioned property, at any point of time. I and 2 nd
respondent are maintaining the property and the rates and taxes, payable in
respect of the petition mentioned property, to the Local Body, Tamil Nadu
Generation of Electricity and Distribution Corporation and other statutory
Authorities, have been paying then and there by me and 2 nd respondent, out of
our own funds, in the name of the 1 st respondent. I and the 2ND respondent have
spent several lakhs for renovating the building in the petition mentioned property
and we have been spending amounts then and there for maintaining the same as
now the building is of 40 yrs old.I and 2 nd respondent are inducting the tenants
and collecting rents from the tenants, who are in occupation of the portions of
the petition mentioned property, till date; and the entire rental income derived
from the petition mentioned property was being deposited into the Bank Account
viz., Porkuviyal Thittam (bghw]Ftpay; jpl]lk;) of the 1st respondent, which, he has
with The Tamilnad Mercantile Bank, till 2016.

10.    I further submit that I am one of the co-owners of the petition mentioned
property along with respondents. Therefore, I am entitled for 1/3 rd share in the
petition mentioned property as the absolute owner thereof. The alleged Sale
Deed, dated 26.10.2006 stands in the name of the 1 st respondent cannot be
termed and construed to be a property purchased by the 1 st respondent solely. I
and the 2nd respondent have agreed for purchase of the petition mentioned
property in the name of the 1st respondent for the joint welfare and well being of
me and the Sale Deed came to be executed in the name of the 1 st respondent,
only in a fiduciary capacity.     

11. I further submit that from 31st March 2016 onwards, certain family disputes
and misunderstandings arose between me and the 1 st respondent. Further, the 1st
respondent was not in possession and enjoyment of the petition mentioned
property as he is employed in Bengaluru City. As the 1st respondent did not take
care of me and my son, I was constrained to file a case, seeking maintenance from
the 1st respondent in M.C.No.102/2017 on the file of the Hon’ble Additional Family
Court, Coimbatore. On the other hand, with false and frivolous allegations, the 1 st
respondent has chosen to file petition, seeking divorce from me, in H.M.O.P.
No.138/2016 on the file of the Hon’ble Additional Family Court, Coimbatore. Both
the above said cases are pending for adjudication. I have entered appearance in
the above said H.M.O.P. No.138/2016 filed by the 1 st respondent and vehemently
contesting the same. The allegations made in the above said H.M.O.P.
No.138/2016 are all false, frivolous and baseless, except those that are specifically
admitted by me. Further, I haave filed a petition in H.M.O.P. No.782/2017 for
“restitution of conjugal rights” and the same is pending enquiry. In the given
circumstances, I apprehend that the 1st respondent would alienate and encumber
the petition mentioned property at any time by hook or crook and thus, the 1 st
respondent is trying to defraud me, my son and the 2 nd respondent of our shares in
the petition mentioned property.

12. I further submit that the 1st respondent, taking advantage of the fact that
the second respondent is an aged person and he is in hapless and helpless
condition coupled with the fact that I am an innocence woman, is making hectic
and clandestine attempts to sell away the petition mentioned property to third
parties, suppressing the 2/3rd share of me and the 2nd respondent. The 1st
respondent has no right or whatsoever to alienate and encumber the petition
mentioned property, with the consent and concurrence of me and the 2 nd
respondent as the petition mentioned property has all along been treating only as
a joint family property. Further, there is abundant evidence available to prove
that at the material times, the 1 st respondent had no financial capacity or
wherewithal to purchase the petition mentioned property for the above said huge
amount. Equally, there is ample evidence to prove that I and the 2 nd respondent
have extended their support monetarily to the 1 st respondent at the material
times.

13. I further submit that I tried to pay the remaining loan amount of Rs 1.45
lacs and release the petition mentioned property document. As I am the co-
applicant, sent a mail to HDFC bank and a notice by my council stating that, they
should not give the document without my concurrence. They also agreed to it and
with-held the document from Nov -2016 to 3 rd May 2018. When the bank lawfully
agreed to withhold the document, suddenly due to some unknown pressure, the
title deed of the petition mentioned property has handed over to the 1 st
respondent on 3rd May 2018 without my knowledge. Which is very clear evidence
that the intention of getting the document is wrong.

14. I further submit that whenever I happened to meet the 1 st respondent

during the Court hearing dates, I and the 2 nd respondent would ask the 1st
respondent for amicable division of the petition mentioned property and
allotment of their 2/3rd share. However, the 1st respondent would not mind it and

-5-

he is acting with an ulterior motive to usurp and appropriate the entire

properties, leaving us. In the above said circumstances, I have left with no other
option except to knock the doors of this Hon’ble Court, seeking a relief of
“partition” by dividing the petition mentioned property into 3 (three) equal shares
by metes and bounds and allot 1 (one) such share to me . After filing of the
aforesaid cases, I reliably learnt that the 1 st respondent has been trying to
alienate the Schedule mentioned property to third parties, in order defeat my
lawful right and his 1/3rd share in the petition mentioned property. Hence the
present suit is preferred.

14. Unless the 1st respondent are prevented by an order of this Hon’ble Court,
they may continue his illegal attempts to alienate the petition mentioned
property, I will be put to irreparable loss and hardship, I have got over whelming
prima facie case and balance of convenience is only in my favour for granting an
order of injunction. The 1st respondent will no way be prejudiced, if an interim
injunction as prayed for is granted; on the contrary, if such reliefs are not granted,
I will be grossly prejudiced.

Therefore, it is just, necessary and expedient that this Hon’ble Court may
be graciously pleased to pass an order of temporary injunction restraining the
respondent, his agents, servants and any persons claiming under him, from in any
manner encumbering or alienating the suit property with specific boundaries to
third parties until the disposal of suit; and also to grant an order of AD INTERIM
INJUNCTION for the above said relief, pending disposal of the Interlocutory
Application filed in support of this Affidavit; and thus, render justice.

DEPONENT

Solemnly Affirmed and Signed

Before Me at Coimbatore on 04.06.2018. Advocate, Erode.

Lastly, on 06.10.2016, plaintiff and defendants have agreed to enter into an Sale
Agreement by the 1st defendant, on behalf of the plaintiff and 2 nd defendant, with
one Meenakshi and her family members and the sale consideration was fixed to
be Rs.16,00,000/- and the Advance amount of Rs.1,20,000/- thereto was paid by

the plaintiff in cash, out of the sale consideration she got by selling the second
defendant’s property, though the Sale Agreement came to be entered in the
name of the 1st defendant. The original cost of the house was 19 lacs +
Registration Fee of 1.3 lacs + 35 Thousand for buying paid to the broker +
renovation work of 2.5 lacs (as it was a 30 years only). To help all this, one more
land of 1.5 lacs also was sold by 2nd defendant to support the plaintiff and 1st
defendant to buy the house. Thus, the 2nd defendant ( it was
written as plaintiff)  has paid Rs.7.50 Lakhs for purchasing the suit
property, excluding the amount by way of availing a loan from the HDFC Bank,
during the material times.

The plaintiff and the 2nd defendant are inducting the tenants and collecting rents
from the tenants, who are in occupation of the portions of the suit property, till
date; and the entire rental income derived from the suit property was being
deposited into the Bank Account viz., Porkuviyal Thittam (bghw]Ftpay; jpl]lk;) of

the 1st defendant, which, he has  with The Tamilnad Mercantile Bank, till 2016.