Madras High Court
Sp.Chockalingam vs N.Visalakshi ... 1St on 9 July, 2021
1 S.A.(MD)NO.222 OF 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.222 of 2009 and
M.P.(MD)No.1 of 2009
SP.Chockalingam ... Appellant/Appellant/
4th Defendant
Vs.
1. N.Visalakshi ... 1st Respondent/1st Respondent/
Plaintiff
2. S.Meenakshi ... 2nd Respondent/2nd Respondent/
1st Defendant
3. SP.Meenal ... 3rd Respondent/3rd Respondent/
2nd Defendant
4. M.Sivakami ... 4th Respondent/4th Respondent/
3rd Defendant
Prayer: Second appeal filed under Section 100 of
C.P.C., to set aside the Judgment and Decree dated
16.09.2008 passed in A.S.No.5 of 2008 on the file of the
District Judge, Sivagangai, confirming the Judgment and
Decree in O.S.No.27 of 2004 on the file of the Subordinate
Judge, Devakottai and thereby to dismiss the suit in O.S.No.27
of 2004 with costs throughout.
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2 S.A.(MD)NO.222 OF 2009
For Appellant : Mr.J.Barathan,
for Mr.T.R.Jeyapalam.
For R-1 : Mr.R.Sundar Srinivasan
R-2 to R-4 : Given up.
***
JUDGMENT
This second appeal arises out of a partition suit.
2. The parties are the children of
SP.CT.Subramaniyan Chettiyar. He passed away on
20.11.1995. Mother Azhagammai had passed away on
24.11.2003. Seeking partition of her share in 'B' schedule, the
plaintiff, one of the daughters filed the suit. Defendants 1 to 3
are the other sisters of the plaintiff. The appellant
SP.Chockalingam was shown as the fourth defendant. He was
the only son of SP.CT.Subramaniyan Chettiyar and
Azhagammai. The appellant filed written statement raising
various contentions. However, the trial Court by Judgment and
Decree dated 26.07.2005 passed preliminary decree in favour
of the plaintiff as prayed for. Questioning the same, the
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3 S.A.(MD)NO.222 OF 2009
appellant filed A.S.No.5 of 2008 before the District Court,
Sivagangai and the same was dismissed on 16.09.2008.
Challenging the same, this second appeal came to be filed.
3. The second appeal was admitted on the following
substantial questions of law:-
“1. Whether the Courts below committed
an illegality in omitting to consider the principles
of Hindu Law that, members of a joint family can
enjoy different portions of joint property for the
sake of convenience without effecting a legal
partition?
2. Whether the Courts below have
committed an illegality in not applying the legal
principle that non-joinder of a sharer in a
partition suit in spite of objection by opposite
party is fatal to the maintainability of the suit for
partition?“
4. The learned counsel appearing for the appellant
reiterated all the contentions set out in the memorandum of
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4 S.A.(MD)NO.222 OF 2009
grounds and called upon this Court to answer the substantial
questions of law in favour of the appellant and dismiss the
suit.
5. Per contra the learned counsel appearing for the
respondents submitted that the impugned judgment and
decree passed by the Court below do not call for any
interference.
6. I carefully considered the rival contentions and
went through the evidence on record.
7. The Courts below have concurrently found that 'B'
schedule was a part of a larger extent of the property, namely,
'A' schedule. 'B' schedule was allotted to the father of the
parties, namely, SP.CT.Subramaniyan Chettiyar. He passed
away intestate. In view of the decision of the Hon'ble Apex
Court reported in (2020) 9 SCC 1 (Vineeta Sharma Vs.
Rakesh Sharma), each of the daughters will get equal share
along with the son. Therefore, the judgment and decree of the
Courts below is accordingly modified and it is decreed that
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5 S.A.(MD)NO.222 OF 2009
each of the parties including the plaintiff as well as the fourth
defendant will be entitled to 1/5th share in the 'B' schedule
items. In all other respects, the impugned judgment and
decree passed by the Courts below are confirmed. The
substantial questions of law are answered against the
appellant.
8. This second appeal is accordingly disposed of. No
costs. Consequently, connected miscellaneous petition is
closed.
09.07.2021
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.
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6 S.A.(MD)NO.222 OF 2009
G.R.SWAMINATHAN,J.
PMU
To:
1. The District Judge,
Sivagangai.
2. The Subordinate Judge,
Devakottai.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
S.A.(MD)No.222 of 2009
09.07.2021
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