Madras High Court
V.Vinotha vs Vinayagam on 26 February, 2021
A.S.(MD)No.218 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.(MD)No.218 of 2018
and
C.M.P.(MD)No.1946 of 2021
1.V.Vinotha
2.V.Vishal (minor) ...Appellants/Plaintiffs
Vs.
1.Vinayagam
2.St.Alphonsa Higher Secondary School,
Rep., by its Correspondent,
Rev.Thomas Pouth Parambil,
No.8, A.R.Camp Road,
Nagercoil Village,
Agasteeswaram Taluk,
Kanyakumari Dsitrict.
3.V.Sujatha ..Respondents/Defendants
PRAYER: This Appeal Suit are filed under Section 96 of the Civil Procedure
Code, against the judgment and decree dated 13.07.2018 passed in O.S.No.
92 of 2017 on the file of the Principal District Judge, Kanyakumari Division
at Nagercoil.
For Appellant : Mr.J.Gunaseelan Muthiah
For Respondents : Mr.AN.Ramanathan
JUDGMENT
This appeal has been filed as against the decree and judgment of
the trial Court dismissing the suit on the preliminary point without going
into the merits of the case.
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A.S.(MD)No.218 of 2018
2. For the sake of convenience, the parties are referred to herein,
as per their rank before the Trial Court.
3.The brief facts, leading to the filing of this Appeal Suit, are as
follows:-
(i) The suit has been filed by the plaintiffs, children of the first
defendant. The second defendant is the purchaser from the first defendant.
The third defendant is also one of the purchaser. It is the case of the
plaintiff that the suit properties originally belong to one Nirupathi Nayanar.
He died on 10.07.1995 leaving behind his son/1st defendant and two
daugheters, namely Thilagavathi and Jeyanthi. The sister of the first
defendant, namely, Thilagavathi filed a suit for partition in O.S.No.126 of
1998 before the I Additional Sub Court, Nagercoil and the said suit was
dismissed. The other sister relinquished her share in favour of the first
defendant. The suit properties are the ancestral properties. Hence, the
plaintiff claims 2/3 share in the suit properties. Hence, the suit.
(ii) Before the trial Court, no witness and no documents have been
on either side.
4. It is the contention of the defendants that the plaintiff has no
right in the suit property and the defendants are the absolute owner of the
suit properties.
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A.S.(MD)No.218 of 2018
6. Based on the above pleadings, the trial Court has framed the
following issues:
(i) Whether the suit schedule properties are
coparcenary properties of plaintiffs and first defendant?
(ii)Since the plaintiffs were born after 1956 and at
the time of grandfather they were not born, are they entitled
to the share as claimed?
(iii)Whether the plaintiffs entitled to the injunction
as prayed for?
(iv)Whether the sale deeds executed by the first
defendant are void documents?
(v)What relief?
7. The trial Court without affording an opportunity to the parties to
lay any oral and documentary evidence decided issue Nos.1 and 2 as
preliminary issues and dismissed the suit holding that the property
inherited by the first defendant is only a self acquired property, since at the
relevant point of time, the plaintiffs were not born. Therefore, the
defendants contended that the suit filed by the plaintiff are not
maintainable.
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A.S.(MD)No.218 of 2018
8. Based on the above pleadings, now the points arise for
consideration in this appeal:-
(1)Whether the findings of the trial Court is based
on proper appreciation of law?
(2)Whether the findings of the trial Court is
sustainable in the eye of law?
9. The pleadings of the parties indicate that the plaintiff possesses
right as coparcener in the suit property. Whereas, the suit has been
dismissed on the preliminary issues without going into the merits of the
case. The parties were not allowed to go for trial or lay any evidence. Issue
Nos.1 and 2 framed by the trial Court are with regard to coparcenary rights
and whether the plaintiff born after 1956 after the death of the grandfather
is entitled to a share as claimed. The very issues were misdirected by the
trial Court. The trial Court has not gone into the scope of coparcenary
right. Admittedly, the properties came to the grandfather of the plaintiff by
partition between the grandfather of the plaintiff and his brothers. The said
fact is not in dispute. As long as the property was allotted among the family
members, the allottee will enjoy the property till the son born to him and
when once the son born, he will also get right over the property by birth.
Therefore, it cannot be stated that merely because, the sons were born after
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A.S.(MD)No.218 of 2018
the death of the grandfather, they will not get any coparcenary right in the
suit properties. Such finding of the trial Court is erroneous.
10. Be that at it may, this Court is not going into the merits of the
case. Accordingly, the finding of the judgment is set aside and the matter is
remanded back to the trial Court to consider the same afresh by affording
opportunity to the parties to file additional pleadings and to implead the
other legal heirs. The trial Court shall dispose of the suit at the earliest not
later than 6 months from the date of receipt of a copy of this order.
11. In the result, this Appeal Suit is allowed and the matter is
remanded back to the trial Court. No costs.
12. At this juncture, it is submitted by the learned counsel for the
respondents that the respondents have filed an application for receiving
additional written statement. Since the appeal itself is disposed of and
remanded back to the trial court, it is open to the respondents to file their
additional written statement before the trial Court as per law. Accordingly,
C.M.P.(MD)No.1946 of 2021 is closed.
26.02.2021
Index : Yes/No
Internet : Yes/No
ta
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A.S.(MD)No.218 of 2018
N.SATHISH KUMAR, J.
ta
To
1.The Principal District Judge,
Kanyakumari Division at Nagercoil
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
A.S.(MD)No.218 of 2018
26.02.2021
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