Madras High Court
S.Thangavel vs Palaniammal ...Plaintiff / on 14 July, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
SA (MD)No.964 of 2007
and
MP(MD)No.2 of 2007
1.S.Thangavel
2.S.Murugesan
3.Kowsalya
4.Saraswathi
5.Ponnuthayammal ... Defendants 1, 2, 4 to 6 /
Appellants 1, 2, 4 to 6 /
Appellants
6.V.Saraswathi
7.Minor Karthikeyan
8.Minor Ajithkumar ... LRs of the deceased 3rd defendant /
Appellants 7 to 9 /
Appellants 6
(Minors 7 & 8 are represented
by their mother & natural guardian/
6th appellant)
Vs.
Palaniammal ...Plaintiff /
D/o.Subbiah Maniam Respondent /
Respondent
https://www.mhc.tn.gov.in/judis/
1/7
Prayer : Second Appeal filed under Section 100 of Civil Procedure
Code, against the judgment and decree passed in A.S No.6 of 2002 on
the file of the Additional District & Sessions Judge, (Fast Track Court),
Dindigul dated 17.11.2004 confirming the judgment and decree
passed in O.S No.1 of 1996 on the file of the Principal Subordinate
Judge, Dindigul dated 28.02.2001.
For Appellants : Mr.R.Nandakumar
For Respondent : No appearance
JUDGEMENT
This second appeal arises out of partition suit proceedings. The
suit was filed by the sole respondent Palaniammal. Palaniammal is
the daughter of Subbiah Maniyam and Ponnuthayammal. Subbiah
Maniyam passed away on 19.11.1987. The case of the plaintiff is that
the suit properties are the self acquired properties of Subbiah
Maniyam and since he died intestate, the plaintiff as one of the legal
heirs is entitled to 1/7th share in the suit properties. Since the
defendants did not come forward for amicable partition, she was
constrained to file O.S No.1 of 1996 before the Principal Sub Court,
Dindigul. The defendants 1 to 3 are the brothers of the plaintiff and
the defendants 4 and 5 are the sisters of the plaintiff. The sixth
defendant is the mother of the plaintiff. The defendants filed their
written statement controverting the plaint averments. There are two
suit schedules. The case of the defendants was that items 1, 2 and 4
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in the second schedule were purchased by the mother
Ponnuthayammal and that the plaintiff cannot have any share
thereon. Based on the divergent pleadings, issues were framed. The
plaintiff examined herself as PW.1 and marked Exs.A1 to A4. The
mother was examined as DW.1. Exs.B1 to B32 were marked. The
trial court by judgment and decree dated 28.02.2001, granted
preliminary decree in favour of the plaintiff declaring that she is
entitled to 1/7th share in the suit items. Aggrieved by the same, the
defendants filed A.S No.6 of 2002 on the file of the Additional District
cum Sessions Judge, (Fast Track Court), Dindigul. In the meanwhile,
the 3rd defendant Thiru.Vadivel had passed away and his legal heirs
had come on record as appellants 8 and 9 before the first appellate
court. The first appellate court by judgment and decree dated
17.11.2004 confirmed the decision of the trial court and dismissed the
appeal. Challenging the same, this second appeal came to be filed. It
was admitted on the following substantial questions of law :
“1.Whether the courts below have
committed an error in law in holding that the
properties purchased in the name of fifth
appellant/6th defendant were that of the self
acquisitions of her husband Subbiah
Maniam/father of the respondent in the absence
of any plea to the said effect ?.
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2.Whether the finding of the courts below
that all the suit properties were the self
acquisitions of deceased Subbiah Maniam is
perverse ?.”
2.None appears for the respondent. The learned counsel for the
appellants reiterated all the contentions set out in the memorandum
of grounds and called upon this Court to answer the substantial
questions of law in favour of the appellants and allow this appeal. He
submitted that the mother Ponnuthayammal had examined herself as
DW.1 and Ex.B18 dated 15.12.1969 was marked through her. It can
be seen therefrom that items 1, 2 and 4 in the second schedule are
the properties that were purchased by the 6th defendant/mother of the
plaintiff. The property taxes were also being remitted only by her and
in her name as evidenced by Exs.B19 to B21. The learned counsel for
the appellants therefore submitted that during the lifetime of the
mother, the said suit items cannot be available for partition.
3.It is also submitted that the first appellant Thangavel and fifth
appellant Ponnuthayammal have passed away during the pendency of
this second appeal. It appears further that Ponnuthayammal died
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some 9 years ago. Even death certificate has not been produced. The
second appeal cannot be dismissed as abated because the other sons
and daughters of Subbiah Maniyam are very much on record.
4.I carefully considered the rival contentions and went through
the evidence on record. The trial court framed a specific issue (Issue
No.6) as to whether items 1, 2 and 4 in the second schedule belong to
the 6th defendants Ponnuthayammal. The trial court had given a
specific finding that there was nothing to show that the mother was
possessed of sufficient funds to buy the aforesaid items. She was only
a home maker. She did not have any capacity to earn on her own.
Therefore, on a balance of probabilities, the trial court has given a
finding that it was Subbiah Maniyam who had purchased these item of
properties in the name of his wife Ponnuthayammal vide Ex.B18. The
said finding had been confirmed by the first appellate court. I am only
exercising jurisdiction under Section 100 of CPC. By no stretch of
imagination can this finding be characterized as perverse. Therefore,
the substantial questions of law are answered against the appellants.
5.The second appeal stands dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
14.07.2021
Index : Yes / No
Internet : Yes/ No
skm
https://www.mhc.tn.gov.in/judis/
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 District & Sessions Judge, (Fast Track Court),
Dindigul.
2. The Principal Subordinate Judge, Dindigul.
Copy to : The Record Keeper, V.R. Section,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis/
G.R.SWAMINATHAN, J.
skm
SA (MD)No.964 of 2007
and
MP(MD)No.2 of 2007
14.07.2021
https://www.mhc.tn.gov.in/judis/
