Madras High Court
Viswanathan vs Rajamani on 6 August, 2021
1 S.A.(MD)NO.702 OF 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.08.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.702 of 2010
Viswanathan,
S/o.Seenivasagam,
Doing business in the name of
“Viswams Auto Stores”,
135/15, Dhamodhara Nagar Main Road,
Tuticorin. ... Appellant/Appellant/
2nd Defendant
Vs.
1. Rajamani
2. Rajeswari
3. Dhanalakshmi ... Respondents 1 to 3/
Respondents 1 to 3/
Plaintiffs
4. Srinivasagam ... 4th Respondent/
4th Respondent/
1st Defendant
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree passed in A.S.No.110
of 2006 dated 28.01.2010 on the file of the Sub Court,
Tuticorin, confirming the Judgment and Decree passed in
O.S.No.84 of 2005 dated 26.09.2005 on the file of the
Principal District Munsif Court, Tuticorin.
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2 S.A.(MD)NO.702 OF 2010
For Appellant : Mr.V.Meenakshisundaram
For Respondents : Mr.G.Prabhu Rajadurai
R-4 : Died.(Memo is filed.
USR 1033/2016)
***
JUDGMENT
The second defendant in O.S.No.84 of 2005 on the file
of the Principal District Munsif, Tuticorin, is the appellant in
this second appeal.
2. The suit was for partition. Respondents 1 to 3
herein are the daughters of Srinivasagam, while the appellant
is his son. The suit property belonged to Chinnamani Nadar.
Seeking partition of their 3/5th share in the suit properties,
respondents 1 to 3 herein filed the said suit. Father
Srinivasagam was shown as the first defendant. The
appellants' brother was shown as the second defendant. The
suit was resisted by the defendants. The Courts below held
that the suit properties are ancestral properties and that
therefore, the plaintiffs are very much entitled to 3/5 th share.
Aggrieved by the same, the second defendant filed A.S.No.110
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3 S.A.(MD)NO.702 OF 2010
of 2006 before the Sub Court, Tuticorin. The first appellate
Court dismissed the appeal and confirmed the preliminary
decree passed by the trial Court. Challenging the same, this
second appeal came to be filed.
3. Though this second appeal was filed way back in
the year 2010, it was not admitted so far. The learned counsel
appearing for the appellant reiterated all the contentions set
out in the memorandum of grounds and called upon this Court
to frame substantial questions of law and admit this second
appeal.
4. Per contra the learned counsel appearing for the
plaintiffs/respondents 1 to 3 submitted that no substantial
question of law arises for consideration.
5. The core contention of the appellant is that the suit
properties are separate properties in the hands of the first
defendant and that therefore, during the lifetime of the father,
partition suit was clearly not maintainable. This contention
will have to be rejected for more than one reason. Though in
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4 S.A.(MD)NO.702 OF 2010
the plaint, it had not been categorically averred that the suit
properties are ancestral properties, the defendants did not put
up any defence that the suit items are separate properties of
the first defendant. In fact a reading of the written statement
would go to show that they have conceded the character of the
suit items as ancestral properties. That is why, the trial Court
also did not frame any issue as to the character of the
properties. As rightly pointed out by the respondents 1 to
3/plaintiffs, this plea is projected for the first time in the
second appeal. I decline to permit the appellant to do so.
Secondly, during the pendency of the proceedings, the fourth
respondent herein, namely, the first defendant/father had also
passed away. No substantial question of law arises for
consideration.
6. This second appeal is dismissed. Taking note of the
subsequent developments, the shares may have to be adjusted.
No costs.
06.08.2021
Index : Yes / No
Internet : Yes/ No
PMU
https://www.mhc.tn.gov.in/judis/
5 S.A.(MD)NO.702 OF 2010
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. The Sub Judge,
Tuticorin.
2. The Principal District Munsif,
Tuticorin.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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6 S.A.(MD)NO.702 OF 2010
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.702 of 2010
06.08.2021
https://www.mhc.tn.gov.in/judis/
