Madras High Court
W.T.K.M.R.Palanisamy (Died) vs M.Ramasamy ... 1St on 23 August, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AS(MD)No.115 of 2010
and
MP(MD) No.1 of 2010 & CMP(MD)No.5211 of 2021
1.W.T.K.M.R.Palanisamy (died) ... Appellant / 2nd defendant
2.P.Mallika
3.P.Jayasudha
4.Rathika
5.P.Rama Priya
6.P.Rusdin ... Appellants
(Appellants 2 to 6 are brought on record
as Lrs of the deceased sole appellant vide order
dated 09.02.2018)
vs.
1.M.Ramasamy ... 1st respondent / Plaintiff
2.Mahalakshmi ... 2nd respondent / 1st defendant
3.Pushpam ... 3rd respondent / 3rd defendant
PRAYER: Appeal Suit filed under Section 96 of C.P.C., to set aside the
judgment and decree dated 12.02.2010 made in O.S No.246 of 2004 on
the file of the Additional District Court cum Fast Track Court, Dindigul.
https://www.mhc.tn.gov.in/judis
1/12
For Appellants : Mr.H.Arumugam
for Mr.S.Kumar
For Respondents : Mr.J.Lawrance for R1 and R2
JUDGMENT
This appeal is directed against the judgment and decree dated
12.02.2010 made in O.S No.246 of 2004 on the file of the Additional
District Judge/Fast Track Court, Dindigul. The first respondent herein,
namely, M.Ramasamy filed the said suit seeking partition of 3/8th share
in the suit properties. The case of the plaintiff is that the suit properties
are the ancestral properties of his grandfather Ramasamy Nadar.
Ramasamy Nadar was married to one Annapoorani Ammal. Through the
wedlock, two sons, namely, Muthiah Nadar and Palanisamy and one
daughter Pushpam were born. Muthiah Nadar got married to
Mahalakshmi, the first defendant and through the said wedlock the
plaintiff was born. Muthiah Nadar passed away on 24.03.1978 intestate.
The grandmother Annapoorani Ammal passed away on 17.11.1988
intestate. The grandfather Ramasamy Nadar had died in late 1940s.
According to the plaintiff, the said properties had not been partitioned.
Since the second defendant Palanisamy, the paternal uncle did not come
forward for an amicable partition, the suit had to be laid. The second
defendant filed a detailed written statement controverting the plaint
averments. The contention of the second defendant was that the
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plaintiff was not born through the wedlock between his brother Muthiah
Nadar and the first defendant Mahalakshmi. The marriage between
Muthiah Nadar and Mahalakshmi took place on 08.05.1970. The first
defendant had filed HMOP No.22 of 1971 before the Sub Court,
Ramanathapuram for annulling the marriage. In the said HMOP, the
second defendant Palanisamy was shown as the guardian to represent
Muthiah Nadar. Mahalakshmi had specifically averred in the said OP
that Muthiah Ndar was impotent. She also pointed out that the
marriage between them was dissolved through customary mode.
Mahalakshmi has been leading an immoral life. The first defendant
Mahalakshmi filed written statement claiming that though she filed a OP
for annulling her marriage, it was allowed to be dismissed for default
and that there was marital reunion with Muthiah Nadar and through the
said wedlock, the plaintiff M.Ramasamy was born. The first defendant
also denied the various allegations made by the second defendant
against her character and conduct.
2.Based on the divergent pleadings, the trial court framed the
necessary issues. The plaintiff examined himself as PW.1 and marked
Exs.A1 to A12. One Pandiyarajan was also examined on the side of the
plaintiff. The first defendant herself examined as DW.1 and one
Jeyaseelan and Mookaiah were examined as DW.2 and DW.3. The
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second defendant was examined as DW.4 and three other witnesses
were also examined on the side of the defendants. Exs.B1 to B32 were
marked. After considering the evidence on record, the trial court by the
impugned judgment and decree dated 12.02.2010, granted preliminary
decree as prayed for. The first defendant was allotted 1/8th share in the
suit properties. Aggrieved by the same, this first appeal came to be filed
by the second defendant W.T.K.M.R.Palanisamy. During the pendency
of the appeal, he passed away and his legal heirs have come on record.
3.The learned counsel appearing for the appellant reiterated all
the contentions set out in the memorandum of grounds. The appellants
filed CMP(MD)No.5211 of 2021 for adducing additional evidence. The
learned counsel for the appellants submitted that though the suit items
are five in number, three of the items, namely, C, D and E stand in the
name of the second defendant Palanisamy and to prove that those items
were purchased by him, it is necessary to adduce additional evidence.
The learned counsel submitted that a first appeal is a continuation of the
original proceedings. He also submitted that the original appellant
failed to mark these documents before the trial court. Only recently, the
appellants were able to trace these documents. Since in spite of due
diligence on the part the appellants the documents could not be filed
before the court below, they were constrained to mark them as
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additional documents. He would also submit that vigilance or negligence
on the part of the appellants should not matter and since these
documents would facilitate rendering an appropriate judgment, he called
upon this Court to allow the civil miscellaneous petition filed under
Order 41 Rule 27 of CPC.
4.Coming to the merits of the matter, the learned counsel for
the appellants submitted that there is no dispute that both Ramasamy
Nadar and his wife Annapoorani Ammal passed away intestate. He
strongly emphasised that when the first defendant had taken a specific
stand that the deceased Muthiah Nadar was impotent and also filed OP
to that effect, the averments made in that O.P cannot be ignored. He
would also point out that as per the civil rules of practice, the person
concerned must affirm the averments set out in a petition for nullity.
He drew my attention to Ex.B9 to show that since the first defendant
had been leading an immoral life and that Muthiah Nadar was impotent,
the plaintiff Ramasamy could not have been born through the wedlock.
He would also submit that the marriage between them was dissolved
before the local panchayat. In fact, Mahalakshmi issued receipt in
favour of the original appellant Palanisamy in this regard. The said
receipt was marked as Ex.B8. The learned counsel for the appellant
submitted that later Mahalakshmi had executed the deed of release
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dated 18.08.1979. Since the original document was lost, they could
mark only a xerox copy. Mahalakshmi admitted having executed the
said document. She was given Rs.25,000/- towards her rights and
interest in the suit properties. He would also point out that Pushpam,
the third defendant had executed release deed in favour of her mother
Annapoorani Ammal and her brother Palanisamy vide Ex.B32 dated
28.12.1982. In the light of these developments, the learned counsel for
the appellant submitted that the trial court ought not to have granted
preliminary decree as prayed for. He called upon this Court to allow
CMP(MD)No.5211 of 2021 and set aside the judgment and decree passed
by the trial court and dismiss the suit in toto.
5.Per contra, the learned counsel for the respondents submitted
that the impugned judgment and decree passed by the trial court do not
warrant any interference.
6.I carefully considered the rival contentions and went through
the evidence on record. The points that arise for determination are as
follows :
“1.Whether the plaintiff Ramasamy was
born to Muthiah Nadar and hence, entitled to
maintain the instant suit for partition ?
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2.Whether the marriage between Muthiah
Nadar and Mahalakshmi was dissolved in the
manner known to law?
3.If the answers to the aforesaid questions
are in favour of the plaintiff, what would be the
entitlement of Ramasamy?
4.Whether the plea for adducing additional
evidence deserves to be allowed ?.”
The specific case of the plaintiff is that the suit properties pertained to
his grandfather Ramasamy Nadar and that he died intestate and that
they are amenable for partition. Nowhere, the contesting defendants
had pleaded that 3 out of 5 suit items are his self acquired properties.
It is not as if the documents that are now sought to be adduced as
additional evidence were not available originally. There is no pleading
that items C, D and E are his absolute properties. No explanation has
been given as to why the documents now sought to be filed as additional
evidence were not produced before the court below. As rightly
contended by the contesting respondents, when the items were
purchased, Palanisamy was hardly twenty years old. He could not have
had any other avocation. I therefore dismiss CMP(MD)No.5211 of 2021.
I hold that the all the properties are joint family properties. Since the
properties have been held as joint family properties, Annapoorani
Ammal, Muthiah Nadar, Palanisamy and Pushpam will have 1/4th share
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each. There is no dispute that Muthiah Nadar got married to the first
defendant Mahalakshmi. It is true that Mahalakshmi filed a O.P for
annulling her marriage with Muthiah Nadar. But the fact remains that
the O.P was dismissed for non-prosecution. But when no conclusive
judicial finding has been rendered and the O.P itself suffered a dismissal
for non-prosecution, it would be most unsafe to come to a conclusion
that Muthiah Nadar was impotent. Section 112 of the Indian Evidence
Act was enacted to avoid stigmatization. It contains a conclusive
presumption. Ramasamy was admittedly born when the wedlock
between Muthiah Nadar and Mahalakshmi was subsisting. It is true
that the other defendants filed some evidence to show that the marriage
between Muthiah Nadar and Mahalakshmi was dissolved before the local
panchayat. The parties belong to the Nadar community. It has not
been shown that among the members of the Nadar community, there
was any practice of dissolution of marriage through customary mode.
The marriage between the two was not dissolved in the manner known to
law. The marriage took place on 08.05.1970. The plaintiff was born on
06.01.1974. Muthiah Nadar passed away on 24.03.1978. It has not
been shown that there was no access between the parties to the
marriage. Therefore, I have to necessarily hold that Muthiah Nadar was
very much the father of the plaintiff Ramasamy.
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7.Having come to this conclusion, I hold that Muthiah Nadar
had 1/4th share in the suit property. Muthiah Nadar passed away on
24.03.1978. His 1/4th share devolved on his mother Annapoorani
Ammal, wife Mahalakshmi and son Ramasamy. Mahalakshmi had
however relinquished her share in the suit property by Ex.B10 which is
equivalent to Ex.A11 in favour of Ramasamy. Therefore, following the
said relinquishment as evidenced by Ex.A11 equivalent to Ex.B10
Mahalakshmi did not have any share in the suit properties. On the
other hand, Ramasamy the plaintiff was having 1/12th share in the suit
properties. But then, certain subsequent developments took place.
Pushpam/third defendant had also relinquished her share in the suit
properties in favour of her brother Palanisamy and mother Annapoorani
Ammal. Annapoorani Ammal was having 1/4th share in the suit
properties. Since she died intestate, her share devolved on the three
branches. The plaintiff had got 1/12th share from Annapoorani Ammal.
8.To recapitulate, Annapoorani Ammal, Muthiah, Palanichamy and
Pushpam got 1/4thshare each from Ramasamy Nadar. Muthiah Nadar’s
1/4th share devolve upon 1/3rd each (i.e.1/12) to Annaporani Ammal
(mother), Mahalakshmi (wife) and Ramasamy (son). Pushpam
relinquished her 1/4th share to Annapoorani Ammal and Palanisamy
through Ex-B-32. Mahalakshmi relinquished her 1/12th share obtained
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from her husband Muthiah to Palanisamy under Ex-A11/Ex-B10.
Annaporani Ammal died intestate and her share devolve upon her 3
children, namely, Muthiah, Palanisamy and Pushpam. The plaintiff and
D-1 will share the Muthiah’s undivided right.
9.For easy division of share, the total share of Ramasamy can
be taken as 144 i.e. 1/4 X 36/36. Therefore one share of ¼ is equal to
36/144. Annapoorani Ammal, Muthiah, Palanisamy Nadar and
Pushpam all will get 36/144 each. Muthiah’s 36/144 will devolve upon
three persons, Annapoorani Ammal, the plaintiff Ramasamy and D-1
Mahalakshmi equally by 12/144 each. Pushpam’s 36/144 will devolve
upon Annapoorani Ammal and D-2 Palanisamy equally through Ex.B-32,
i.e. 18/144 each. The Plaintiff Ramasamy will get 12/144 from Muthiah.
Mahalakshmi who got 12/144 from Muthiah relinquished the same in
favour of Palansiamy under Ex.A-11 = B-10. Thus, Annapoorani Ammal
got 36/144 from Ramasamy, 12/144 from Muthiah and 18/144 from
Pushpam. Thus, she got 66/144. Since she died intestate her share will
devolve upon the branch of Muthiah, Palanisamy Nadar & Pushpam
equally i.e., 22/144 each. The 22/144 of Muthiah’s Branch will devolve
upon Ramasamyand Mahalakshmi, i.e. Plaintiff and D1 equally i.e.,
11/144 each.
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10.The impugned judgment and decree passed by the trial court
is confirmed subject to the following modifications :
a)The plaintiff will get 12/144 from his father
Muthiah and 11/144 from his grandmother
AnnapooraniAmmal. Thus he is entitled to 23/144.
b) D-1 Mahalakshmi is entitled to 11/144
inherited from Annapoorani Ammal.
c) D-2 Palanisamy will get 36/144 from his
father Ramasamy, 12/144 through relinquishment by
Mahalakshmi (D-1), 18/144 from Pushpam (D-3) through
relinquishment and 22/144 from Annapoorani Ammal.
Thus, he will get 88/144.
d) D-3 Pushpam will get 22/144 from
Annapoorani Ammal.
The appeal is partly allowed. No costs. Consequently, connected
miscellaneous petitions are closed.
23.08.2021
Index : Yes/No
Internet : Yes/No
skm
To
1.The Additional District Court cum Fast Track Court, Dindigul.
2.The Section Officer (2 Copies), V.R.Section,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN, J.
skm
AS(MD)No.115 of 2010
and
MP(MD) No.1 of 2010 &
CMP(MD)No.5211 of 2021
23.08.2021
https://www.mhc.tn.gov.in/judis
