1 CRP.(PD) No.4796 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.09.2022
CORAM:
THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI
C.R.P. (PD) No.4796 of 2017
and C.M.P. No.22567 of 2017
1. Yamuna
2. Minor Bharath .... Petitioners
Versus
1. Rukumani
2.Komala
3.Superintendent of Police,
Cuddalore District.
4.Superintendent of Police,
Thiruvallur.
5. Superintendent of Police,
Police Training Academy,
Vandalur, Thiruvallur District. ....Respondents
(Since the Respondents 3 to 5 were remained exparte in the Trial Court,
notice may be dispensed with for them)
Prayer:Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the fair and decreetal order dated
07.10.2017 made in I.A.No.120 of 2017 in O.S.No.122 of 2014 on the file
of II Additional District Judge, Chidambaram.
1/5
https://www.mhc.tn.gov.in/judis
2 CRP.(PD) No.4796 of 2017
For Petitioners : Mr.A. Muthukumar
For R1 & R2 : Mr.D. Baskar
For R3 to R5 : They were set exparte
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ORDER
This Civil Revision Petition has been filed by the petitioners seeking to set aside the fair and decreetal order dated 07.10.2017 made in I.A.No.120 of 2017 in O.S.No.122 of 2014 on the file of II Additional District Judge, Chidambaram.
2.The petitioners herein are the defendants 1 and 2 and the respondents herein are the plaintiffs 1 and 2 in the original suit who are the mother and sister of the 1st defendant's husband.
3. For the sake of convenience, the parties are referred to as per the rank cited in the suit.
4. The case of the petitioners is that the plaintiffs have filed the suit in O.S. No.122 of 2014 on the file of the II Additional District Judge, 2/5 https://www.mhc.tn.gov.in/judis 3 CRP.(PD) No.4796 of 2017 Chidambaram, seeking for partition and separate possession in respect of 7/9th shares of plaintiffs/respondents herein in the suit property. During pendency of the suit, the defendants 1 and 2 filed an Application in I.A. No.120 of 2017 in O.S. No.122 of 2014 seeking to implead the LIC amount as well as 30 sovereigns of gold jewels in the plaint as B Schedule property. The Court below after considering both side submissions, dismissed the I.A. No.120 of 2017 by its order dated 07.10.2017 holding that there is no necessity to show the aforesaid items as property in the plaint schedule property. Being aggrieved by the aforesaid order, the present Civil Revision Petition has been filed by the defendants 1 and 2 seeking to set aside the same.
5.The learned counsel for the petitioners submitted that the 1st defendant's husband died due to illness who had taken LIC Policy for Rs.2 Lakhs under Policy No.734011633 and the 1st plaintiff who is mother of the deceased, received the said amount without giving any share to the 1st defendant/wife of the deceased. Hence, the same is also available for partition as estate of the deceased. Further, 30 Sovereigns of Gold Jewels has been given at the time of marriage. Those Jewels are in the custody of 3/5 https://www.mhc.tn.gov.in/judis 4 CRP.(PD) No.4796 of 2017 the 1st plaintiff. The 1st plaintiff had purposely left these items from including in the schedule of property to the plaint. Hence, the defendants 1 and 2 have filed the I.A.No.120 of 2017 to implead the same in the suit schedule property. However, the Trial Court failed to follow the well settled law that the defendants in a suit for partition can maintain a petition for amendment of plaint for inclusion of the left out properties and therefore, the order of the Court below is liable to be set aside. In support of his argument, the learned counsel for the petitioners has relied on the the Judgment in the case of "A.A. Ganga and Another Vs. A.R. Usha and Others" reported in (2010) 6 MLJ 537 passed by the Madurai Bench of this Court.
6. Per contra, the learned counsel for the respondents submitted that the maturity amount upon LIC policy was used to discharge the loans obtained for the treatment of the deceased. Further, No jewels belonging to the 1st defendant is with the 1st plaintiff. While being so, amendment of plaint for inclusion of the aforesaid items is not sustainable. Hence, the Trial Court has rightly dismissed the I.A. No.120 of 2017 filed by the defendants 1 and 2 after considering facts and circumstances of the case. 4/5 https://www.mhc.tn.gov.in/judis 5 CRP.(PD) No.4796 of 2017 thereby, the Civil Revision petition is liable to be dismissed.
7. Heard the learned counsel for both parties and perused the materials available on record.
8. Having considered the facts and circumstances of the case and submissions made by the learned counsel for both parties, it is learnt that the plaintiffs filed the suit seeking for partition in O.S. No.122 of 2014 on the file of the II Additional District Munsif, Chidambaram. The defendants 1 and 2 in the suit filed an Application in I.A. No.120 of 2017 seeking to include the LIC Policy amount and the 30 Sovereign of gold jewels given on the marriage occasion, in the suit schedule property. In a suit for partition, all the properties are to be partitioned including the LIC Policy amount and Jewels and other items. Only amendment can be allowed for including the LIC Policy and Gold Jewels, the suit would be decided on merit after proper trial. Otherwise, there is a possibility to lead to the multiplicity of proceedings. By including the aforesaid items in the suit schedule property, it would not affect the right of the plaintiffs in any way and further, they can raise any issue in this regard at the time of the Trial. 5/5 https://www.mhc.tn.gov.in/judis 6 CRP.(PD) No.4796 of 2017
9. In view of the above, the order of the Court below is liable to be set aside and the LIC Policy amount and 30 Sovereigns of Gold Jewels are ordered to be included in the suit schedule property for effective adjudication of the suit and considering the aforesaid items, the issues shall be framed accordingly and since the suit is of the year 2014, it is directed to be decided as expeditiously as possible.
10. In the result, the Civil Revision Petition is allowed. Consequently, connected miscellaneous petition is closed if any. No costs.
15.09.2022 Lbm Index : Yes/No Speaking Order : Yes/No 6/5 https://www.mhc.tn.gov.in/judis 7 CRP.(PD) No.4796 of 2017 To:
1. The II Additional District Judge, Chidambaram.
2. The Section Officer, V.R.Section High Court, Madras.
7/5 https://www.mhc.tn.gov.in/judis 8 CRP.(PD) No.4796 of 2017 T.V.THAMILSELVI, J.
Lbm C.R.P. (PD) No.4796 of 2017 and C.M.P. No.22567 of 2017 15.09.2022 8/5 https://www.mhc.tn.gov.in/judis