Madras High Court
R.Anantha Raman vs R.Mahadevan on 11 August, 2021
S.A.(MD)No.211 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.211 of 2014
and
M.P.(MD)No.1 of 2014
R.Anantha Raman ... Appellant / Appellant / Petitioner
-Vs-
1.R.Mahadevan
2.Sivakami(died) ... Respondents / Respondents /
Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 05.10.2013 made in A.S.No.46
of 2013 on the file of the Subordinate Court, Nagercoil, which was
confirming the judgment and decree dated 03.04.2013 made in I.A.No.126
of 2013 in O.S.No.295 of 2004 on the file of the Principal District Munsif
Court, Nagercoil.
For Appellant : Mr.J.Barathan
for Mr.T.R.Jeyapalam
For R1 : Mr.Mahadevan
for Mr.S.Balakarthick
https://www.mhc.tn.gov.in/judis/
1/8
S.A.(MD)No.211 of 2014
JUDGMENT
For easy appreciation of the facts, the following genealogy is
necessary.
RAMASAMY
Manikandan Mahadevan Anantha Raman Sivakami
(Son) (Son) (Son) (Daughter)
(Died) (Died)
2. There is no dispute that Mahadevan filed O.S.No.295 of 2004 on
the file of the Principal District Munsif Court, Nagercoil seeking the relief
of partition. In the suit, he arrayed his brother Manikandan and Anantha
Raman as defendants. He left out his sister Sivakami. Only at a later point
of time, she was also impleaded as defendant. The suit items are six in
number. Except item No.4, the other items admittedly belonged to the
father Ramasamy. After both sides adduced the evidence, the learned trial
Judge passed a preliminary decree granting 1/4th share to each of the parties
in all the suit items. Aggrieved by the same, Manikandan and Anantha
Raman filed A.S.No.139 of 2007 before the Principal Sub Court, Nagercoil.
The contention urged before the first appellate Court was that the fourth
item in the suit schedule was the absolute and exclusive property of
Manikandan, since it was purchased by him under three sale deeds. This
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.211 of 2014
contention was eventually accepted and preliminary decree granting shares
in favour of the plaintiff Mahadevan and the third defendant Sivakami was
confined to other items namely 1,2 3, 5 & 6. During the pendency of the
appeal, Manikandan passed away. Manikandan was a bachelor and he was
also said to be suffering from some physical aliments. The other
appellant/Anantha Raman filed Ex.B5 Will dated 28.09.1999 executed by
Manikandan in his favour. The marking of the said Will-Ex.B5 was not
opposed by Mahadevan or Sivakami. Since the contesting defendants did
not have any opposition, the Will came to be marked and on the strength of
the averments set out in the Will, the first appellate Court, by judgment and
decree dated 24.11.2010, set aside the decision of the trial Court as regards
the fourth item. In respect of the other items, the decision of the trial Court
was confirmed. The first appellate Court gave a further finding that the
share of Manikandan in respect of the other items would also devolve on
Anantha Raman. It is relevant to mention here that this judgment and
decree dated 24.11.2010 passed by the Principal Sub Court, Nagercoil in
A.S.No.139 of 2007 was not challenged by Mahadevan or Sivakami. In
other words, it became final. In terms of the aforesaid decision of the
judgment and decree passed by the first appellate Court, Anantha Raman,
filed I.A.No.126 of 2013 in O.S.No.295 of 2004 before the trial Court for
passing supplementary preliminary decree. It was opposed by the
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.211 of 2014
respondents. The trial Court, by judgment and decree dated 03.04.2013,
dismissed the said I.A. Challenging the same, Anantha Raman filed
A.S.No.46 of 2013 before the Principal Sub Court, Nagercoil. The first
appeal was also dismissed. Questioning the same, this second appeal came
to be filed. The second appeal was admitted on the following substantial
questions of law:-
“1.Whether the Courts below is justified in law in
holding that the second defendant is not the legal heir of the first
defendant, even though the second defendant was recorded as legal
heirs of the deceased first defendant on the basis of the will executed
by the deceased 1st defendant?
2.Whether the Courts below are right in holding that the
plaintiff, 2nd and 3rd defendants are legal heirs of the deceased 1st
defendant having recorded the second defendant as legal heirs of the
deceased 1st defendant on the basis of the Will executed by the
deceased 1st defendant?
3.Whether the Courts below are right in negative the claim of
the 2nd defendant for supplementary preliminary decree on the basis
of the rights derived from the deceased first defendant? ”
3. During the pendency of the appeal, Sivakami passed away. The
learned counsel appearing for the first respondent strongly submitted that
the legal heirs of Sivakami should be brought on record. Since the
appellant had not done so, this appeal may have to be dismissed as abated
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.211 of 2014
as against the second respondent herein. The learned counsel appearing for
the appellant submitted that while it is not necessary to bring the legal heirs
of Sivakami on record, if this Court so feels, the appellant is ready to file an
application to bring the legal heirs of Sivakami on record.
4.I carefully considered the rival contentions and went through the
evidence on record. It is too well settled that in a partition suit, there can be
passing of more than one preliminary decree. In the case on hand, there is
no dispute as regards the fourth item of the suit schedule that it belonged to
Manikandan. The contest was only regarding the remaining five items.
When the preliminary decree was originally passed, Manikandan was very
much alive. Therefore, the trial Court granted 1/4th share to each of the
parties namely Mahadevan, Manikandan, Anantha Raman and Sivakami.
Subsequently, Manikandan passed away. He had executed Ex.B5-Will. In
Ex.B5-Will, Manikandan had nominated Anantha Raman as his universal
legatee. He was specifically given the suit item No.4 and also shares in all
other items which may devolve on Manikandan later. That is why, the first
appellate Court, while partly allowing A.S.No.139 of 2007, had
categorically given a finding that share of Manikandan in the suit items 1,2,
3, 5 & 6 would also devolve on Anantha Raman. I.A.No.126 of 2013 had
been filed only in terms of the aforesaid decree passed by the first appellate
Court. A.S.No.139 of 2007 had become final.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.211 of 2014
5.He was only seeking to work out his rights in terms of the aforesaid
judgment and decree passed by the first appellate Court which became final
and accepted by both Mahadevan and Sivakami. I am of the view that it is
not necessary to bring the legal heirs of Sivakami on record. The Courts
below have omitted to give effect to what was directed in A.S.No.139 of
2007. The Courts below could not have gone against what was specifically
directed to be allotted to the share of the appellant herein. The substantial
questions of law are answered in favour of the appellant. The judgment and
decree passed by the first appellate Court is set aside. I.A.126 of 2013 is
allowed as prayed for.
6.The learned counsel for the first respondent submitted that the
appellant herein is seeking to drag on the proceedings and deny the fruits of
the decree.
7.The learned counsel for the appellant gives an undertaking before
this Court that the appellant would extend his fullest co-operation for
concluding the final decree proceedings. The plaintiff/R1 had already filed
I.A.No.1441 of 2012 before the Principal District Munsif, Nagercoil. It is
stated that children of Sivakami had already come on record in the final
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.211 of 2014
decree proceedings also.
8.While the plaintiff Mahadevan will be entitled to 1/4th share in the
suit items 1, 2, 3, 5 &6, the legal heirs of Sivakami will be equally entitled
to another 1/4th share in the suit items 1, 2,3,5 & 6. The appellant Anantha
Raman will be entitled to 1/2 share in the suit items 1, 2, 3, 5 & 6, while he
will be fully entitled to the suit item No.4. The trial Court will conclude the
final decree proceedings within six months from the date of receipt of a
copy of the decree.
9. The second appeal is allowed on these terms. No costs.
Consequently, connected miscellaneous petition is closed.
11.08.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Subordinate Court, Nagercoil.
2. The Principal District Munsif Court, Nagercoil.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,Madurai.
G.R.SWAMINATHAN.J.,
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.211 of 2014
rmi
Judgment made in
S.A.(MD)No.211 of 2014
and
M.P.(MD)No.1 of 2014
11.08.2021
https://www.mhc.tn.gov.in/judis/
