Madras High Court
Kamalam vs Arputhammal on 23 August, 2021
1 S.A.NO.249 OF 2004
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.08.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.249 of 2004 and
M.P.(MD)No.1 of 2009 &
C.M.P.No.1109 of 2004
Kamalam ... Appellant / 7th Respondent /
7th Defendant
Vs.
1. Arputhammal
2. Selvi. Suganthi ... Respondents 1 & 2/
Appellants / Plaintiffs
3. A.Madalaimuthu (Died)
4. Anthoniammal
5. V.Amalraj
6. V.John Kennedy
7. V.Suveesan
8. Soundaram (Died)
9. Y.Asirvadam (Died)
10.Y.Anthoni
11.Amirtham
12.Viswasammal
13.Arokiammal
14.Y.Velankanni Arokiyam(Died) ... Respondents 3 to 14/
Respondents 2 to 6, 8 to 14 /
Defendants 2 to 6
15.Arockiammal
16.Annai Malar
17.Maria Rasathi
18.Soosai Mary
19.Velankanni
20.Melwin Kishore
21.Fathima
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2 S.A.NO.249 OF 2004
22.Jeya
23.Josewayagappan
(R-3 to 7 were set exparte and given up. Hence, no notice is
necessary)
(R-1 & R-9 to R-14 are recorded as LRs. of the deceased R-8
vide Order dated 13.04.2010 made in M.P.(MD)No.4 of 2010)
(R-15 to R-20 are brought on record as LRs. of the deceased
R-3 vide Order dated 18.10.2011 in M.P.(MD)Nos.1 to 3 of 2010)
(R-21 is brought on record as LR. of the deceased R-9 vide
Order dated 25.06.2021 in C.M.P.(MD)Nos.10460 to 10463 of
2018)
(R-22 and R-23 are brought on record as LRs. of the deceased
R-14 vide Order dated 25.06.2021 in C.M.P.(MD)Nos.10460 to
10463 of 2018)
... Respondents 15 to 23
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Decree and Judgment of the Court of the
Additional Subordinate Judge, Dindigul, made in A.S.No.10 of
2011 dated 30.12.2003, reversing the Decree and Judgment of
the Court of the Principal District Munsif, Dindigul, in O.S.
No.2072 of 1993 dated 29.06.2000.
For Appellant : Ms.A.L.Gandhimathi
For R-1,R-2,R-4,
R-5 and R-7 : Mr.S.Sarvagan Prabhu
For R-10, R-11,
R-18,R-19
& R-20 : No appearance.
R-3 to R-7 : Given up.
R-3,R-8,R-9
& R-14 : Died.
***
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3 S.A.NO.249 OF 2004
JUDGMENT
This second appeal arises out of a suit for partition in
O.S.No.2072 of 1993 on the file of the Principal District
Munsif, Dindigul.
2. The said suit was instituted by respondents 1 and 2
herein for partition and separate possession of 1/8th share in
the suit items. The suit schedule comprises two items. The
appellant herein who was shown as the seventh defendant in
the suit had purchased the first item under Ex.B.3 dated
02.09.1993. The suit was dismissed by the trial Court vide
judgment and decree dated 29.06.2000. The plaintiffs filed
A.S.No.10 of 2001 before the Additional Sub Court, Dindigul.
The first appellate Court vide judgment and decree dated
30.12.2003, set aside the decision of the trial Court and
allowed the first appeal and granted 1/10th share in favour of
the plaintiffs. Aggrieved by the same, this second appeal was
filed.
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4 S.A.NO.249 OF 2004
3. The second appeal was admitted on the following
substantial question of law:-
“ When the property purchased by the
appellant is shown to be the self-acquired
property of his vendor, namely, the first
defendant, whether his daughter as plaintiff
would have a share legally in the said self-
acquired property of his father, which he had
conveyed during his life time? ”
4. The additional substantial question of law was
framed on 23.08.2021 as follows:-
“ Whether the suit is bad for partial partition? “
5. Heard the learned counsel appearing for the
appellant/purchaser/7th defendant and the learned counsel
appearing for respondents 1 and 2/plaintiffs.
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5 S.A.NO.249 OF 2004
6. The following is the Genealogy:-
Amirtham Servai = Ponnayi @ Visuvasammal
Yagappan = Soundaramary @ Chinnammal Inesammal = Anthoni
D1 D8
______________________________________________ __________
Arputhammal Asirvatham Anthoni Visuvasammal Amirtham Arokiammal Velankanni Rasathi Viyakulam
Plaintiff D9 D10 D12 D11 D13 D14
_____________________________ ___________________
Amalraj John Kennady Switson Sugandhi Madhalaimuthu Anthoniammal
D4 D5 D6 Plaintiff D2
7. The case of the plaintiffs is that the suit property
belonged to the father of the first defendant, namely,
Amirtham Servai. Following his demise, the suit property
devolved not only on Yagappan but also on Inesammal.
Inesammal got married to Anthoni and begot two children,
namely, Rasathi and Viyakulam. The first daughter of
Yagappan, namely, Arputhammal got married to Viyakulam
and through the said wedlock, the second plaintiff Suganthi
and sons/defendants 4 to 6 were born. The specific allegation
of the plaintiffs is that the sale made by Yagappan in favour of
the appellant, namely, Kamalam is not binding on them.
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6 S.A.NO.249 OF 2004
8. Though this contention may have considerable
substance, the fact remains that the plaintiffs have not
included all the properties that belonged to Amirtham Servai
in the suit schedule. The trial Court pointed out that under
Ex.B.1 dated 29.04.1964, the first defendant Yagappan had
settled the house property and also an acre of agricultural
land. In the said document, it had been mentioned that the
property came to him from Amirtham Servai. If the plaintiffs
wanted to impeach the sale made by Yagappan in favour of the
appellant under Ex.B.3 dated 02.09.1993, they ought to have
included the entire property covered by Ex.B.1 dated
29.04.1964. The plaintiffs cannot seek selective partition. In
the very nature of things, they could have filed only a general
suit for partition. In such a general suit for partition, all the
properties amenable to partition must have been included.
The plaintiffs have not done so. The trial Court non-suited the
plaintiffs primarily on this ground. The first appellate Court
has not taken note of this aspect. Therefore, I answer the
substantial questions of law in favour of the appellant. The
impugned judgment and decree of the first appellate Court is
set aside and the decision of the trial Court is restored.
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7 S.A.NO.249 OF 2004
9. This second appeal is allowed. No costs.
Consequently, connected miscellaneous petitions are closed.
23.08.2021
Index : Yes / No
Internet : Yes/ No
PMU
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 Additional Subordinate Judge,
Dindigul.
2. The Principal District Munsif,
Dindigul.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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8 S.A.NO.249 OF 2004
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.249 of 2004
23.08.2021
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