Ramalingam vs Lakshmi Ammal
2021 Latest Caselaw 17042 Mad

                                                                           S.A.(MD)No.869 of 2014

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED: 19.08.2021

                                                      CORAM:

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                            S.A.(MD)No.869 of 2014

                   Ramalingam                      ... Appellant / Respondent / Defendant

                                                      -Vs-




                   Lakshmi Ammal                  ... Respondent / Appellant / Plaintiff


                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                   Code, against the judgment and decree of the learned 2nd Additional District
                   and Sessions Judge, Tiruchirappalli in A.S.No.295 of 2011, dated
                   27.03.2013 reversing the judgment and decree dated 09.07.2010 made in
                   O.S.No.182 of 2005 on the file of the 1st Additional Subordinate Judge,
                   Tiruchirappalli.


                                      For Appellant          : Mr.R.Sundar Srinivasan
                                      For Respondent         : Ms.J.Anandha Valli




https://www.mhc.tn.gov.in/judis/


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                                                                             S.A.(MD)No.869 of 2014

                                                      JUDGMENT

This second appeal arises out of a partition suit. The respondent

herein namely Lakshmi Ammal filed O.S.No.182 of 2005 on the file of the

first Additional Subordinate Judge, Trichy, seeking partition and separate

possession of 1/2 share in the suit properties. The suit properties are 13 in

number.

2. The case of the plaintiff is that her father late Arumugam got most

of the suit properties under registered partition deed dated 26.06.1952.

Arumugam got married to Annakili and through the wedlock, the plaintiff

and the defendant Ramalingam were born. After 1952 partition, the

plaintiff's father purchased some properties. On 29.12.1969, there was a

partition between the plaintiff's father Arumugam and the plaintiff's brother

Ramalingam. In the said partition, Arumugam was allotted 'A' schedule

properties, while Ramalingam was allotted 'B' schedule properties.

The plaintiff's father Arumugam thus obtained exclusive title over the 'A'

schedule properties set out in the partition deed dated 29.06.1969.

The plaintiff would specifically claim that the suit schedule properties

broadly correspond to “A” schedule properties of the partition deed dated

29.06.1969. The plaintiff's father died intestate in the year 1981. The

plaintiff's mother also died some time in the year 1985. https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.869 of 2014

3. The plaintiff would claim that the suit properties have not been

partitioned. Since the defendant / brother was acting in an unfair manner,

she was constrained to file the suit for partition. The defendant filed the

written statement controverting the plaint averments. The defendant

pointed out that after 1969 partition between the defendant and Armugam/

father of the parties herein, certain transactions took place. Under the

partition deed dated 29.06.1969, the father Arumugam was allotted as many

as 11 items. All the 11 items were settled by Arumugam during his life

time. Following the demise of the father, there was an exchange of

properties between the plaintiff and the defendant on 27.05.1982. The

defendant would allege that suppressing all these material aspects, the suit

had been instituted. Based on the divergent pleadings, the trial Court

framed the necessary issues. The plaintiff examined herself as P.W.1 and

marked Ex.A1 to Ex.A6. The defendant examined himself as D.W.1 and

marked Ex.B1 to Ex.B3.

4. After a consideration of the evidence on record, the trial Court, by

judgment and decree dated 09.07.2010 dismissed the suit. Aggrieved by the

same, the plaintiff filed A.S.No.295 of 2011 before the second Additional

District and Sessions Judge, Trichy. By the impugned judgment and decree

dated 27.03.2013, the first appellate Court set aside the judgment and https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.869 of 2014

decree passed by the trial Court and passed preliminary decree as prayed

for. Aggrieved by the same, the defendant has filed this second appeal.

5.The second appeal was admitted on the following substantial

questions of law:-

(a) Whether the lower appellate Court is justified in setting

aside on surmises and conjectures the well considered judgment and

decree of the trial Court?

(b) Whether the first appellate Court is justified in granting a

decree for partition overlooking the deed of exchange dated

27.05.1982 executed between the plaintiff and appellant which would

falsify the contention of the plaintiffs that the properties are common

properties?

(c) Whether the first appellate Court is justified in not holding

that the suit is barred by limitation?

(d) Whether the first appellate Court is justified in not holding

that the plaintiff is estopped in fact and upon law and by conduct in

claiming the relief of partition?

(e) Whether the first appellate Court is justified in setting aside

the findings of the trial Court without any discussion about the

reasoning assigned by the trial Court for dismissing the suit?

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S.A.(MD)No.869 of 2014

(f) Whether the first appellate Court is justified in not framing

points for determination which is mandatory under Order 41 Rule 31

of C.P.C., which has resulted in miscarriage of justice.

(g) Whether the first appellate Court is justified in granting

decree of partition when the sons of the appellant who are the settlees

were not impleaded as parties?

6.Heard the learned counsel on either side.

7.I am more than satisfied that the father of the parties herein namely

Arumugam settled most of the items that were allotted to him under the

partition deed dated 29.12.1969 (Ex.A3) in favour of the grand children

born through the appellant and the plaintiff herself. Of-course, the

registered deed of settlement dated 09.02.1977 executed by Arumugam in

favour of the plaintiff was not marked before the Court below. The

defendant however had marked the deed of exchange dated 27.05.1982

(Ex.B2). When the plaintiff was questioned on this, she flatly denied that

an exchange ever took place. However, from a perusal of the grounds of

first appeal, one can notice that she had grudgingly conceded that some of

the suit items very much figure in Ex.B2- deed of exchange.

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S.A.(MD)No.869 of 2014

8. There is considerable merit in the contention of the learned counsel

appearing for the appellants that a person who approaches the Court with

unclean hands must be non-suited at the threshold. He referred to the

decision of the Hon'ble Supreme Court reported in (2010) 14 SCC 38

(Ramjas Foundation Vs. Union of India ).

9. In the case on hand, the plaintiff had deliberately not included the

deed of settlement dated 09.02.1977 executed in her favour and the deed of

exchange entered into with the defendant. There is also another lacuna in

the case of the plaintiff. The suit schedule comprises as many as 13 items

but the description is totally vague. The plaintiff appears to have maintained

the description that probably obtained way back in the year 1952. There is

nothing to show that these items belonged to the father Arumugam. The

plaintiff having come to the Court seeking the relief of partition, is obliged

to file a correlation statement indicating that the properties belonged to the

father Arumugam. Without taking note of any of these aspects, the first

appellate Court has granted preliminary decree as prayed for.

10. It is admitted by the learned counsel appearing for the appellant

that the property covered under Ex.A2, dated 03.12.1957 does not appear to

be included in the 1969 partition deed (Ex.A3) or in the subsequent deed of https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.869 of 2014

settlement. Since the plaintiff has not filed the correlation statement, the

counsel on either side agree that the impugned judgment and decree passed

by the first appellate Court can be set aside and the matter can be remanded

to the file of the trial Court. Accordingly, the impugned judgment is set

aside. The second appeal is allowed. The matter is remanded to the file of

the trial Court. The plaintiff will have to file a petition for amending the

suit schedule. The plaintiff will have to file a correlation statement and

thereafter, exclude the items that are covered under Ex.B1 dated 30.10.1978

and Ex.B2 dated 27.05.1982. If there are any other properties belonging to

Arumugam still available, the suit schedule will be confined only to those

items. It is open to the defendant to file additional written statement. His

defence is fully left open. No costs.

19.08.2021

Internet : Yes/No Index : Yes/No rmi To

1.The 2nd Additional District and Sessions Judge, Tiruchirappalli.

2. The 1st Additional Subordinate Judge, Tiruchirappalli.

3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.869 of 2014

G.R.SWAMINATHAN.J.,

rmi

Judgment made in S.A.(MD)No.869 of 2014

19.08.2021

https://www.mhc.tn.gov.in/judis/