Madras High Court
Kalyanasundaram (Died) vs K.M.Shanmuga Sundaram on 22 July, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
SA(MD)No.91 of 2007
1.Kalyanasundaram (died)
2.Dakshinamoorthy
Rep.by its Power of Attorney Agent
K.Somasundaram
3.K.Somasundaram ... Plaintiffs/Appellants/Appellants
(A3 was brought on record as LRs of
the deceased first appellant vide
Court order dated 14.06.2021)
Vs.
1.K.M.Shanmuga Sundaram
2.S.Amarnath
3.Veerapathiran
(R3 was impleaded vide court order
dated 19.02.2021 made in
CMP(MD)No.1263 of 2021)
4.K.Alamelu
5.K.Nagarajan
6.Amudha ... Respondents / Defendants
(R4 to R6 were brought on record
vide court order dated 14.06.2021)
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 dated 12.08.2005 made in A.S
No.22 of 2005 on the file of the Subordinate Judge,, Devakottai
confirming the judgment and decree dated 31.01.2005 made in O.S
No.36 of 2004 on the file of the District Munsif Court, Devakottai.
For Appellant : Mrs.Chithra Sampath
for Mr.Rajkumar
for Pon Karthikeyan
For Respondents : Mr.Vallinayagam, Senior Counsel
for Mr.J.Anandkumar for R3
Mr.A.Arumugam for R1 & R2
JUDGEMENT
The plaintiffs in O.S No.36 of 2004 on the file of the District
Munsif, Devakottai are the appellants in this second appeal. The suit
was filed by Shri.Kalyanasundaram and his brother Dakshinamoorthy
through their power agent K.Somasundaram. Somasundaram is none
other than the biological son of Shri.Kalyanasundaram. During the
pendency of this second appeal, Kalyanasundaram passed away and
his legal heirs have been brought on record. Kalyanasundaram,
Dakshinamoorthy and the first defendant K.M.Shanmugasundaram
are brothers. The suit involved the documents executed by their
mother Marimuthammal. According to the plaintiffs, the Will dated
https://www.mhc.tn.gov.in/judis/
22.06.1999 (Ex.A1) executed by Marimuthammal was the last and
final Will. On the other hand, Shri.Dakshinamoorthy contended that
the said Will was cancelled by a subsequent Will dated 10.09.2001
(Ex.B4). Ex.A1 dated 22.06.1999 dealt with two land items (vacant
sites). According to the first plaintiff K.M.Shanmugasundaram while
one item was bequeathed vide Will dated 10.09.2001 (Ex.B4), the
other item was settled in his favour vide settlement deed dated
11.09.2001 (Ex.B5). The suit came to be dismissed by the trial court
vide judgment and decree dated 31.01.2005 and Ex.B4 Will as well as
Ex.B5 settlement deed were upheld. Challenging the same, the
plaintiffs filed A.S No.22 of 2005 before the Sub Court, Devakottai.
The first appellate court vide judgment and decree dated 12.08.2005
dismissed the appeal. Challenging the same, this second appeal came
to be filed. After the dismissal of A.S No.22 of 2005,
Shanmugasundaram sold the property covered under Ex.B5 in favour
of Veerapathiran/the third respondent vide sale deed dated
01.12.2005 (Document No.3504 of 2005), Sub Registrar, Devakottai.
2.The appellants were represented by Mrs.Chithra Sampath,
learned Senior Counsel while Shri.Vallinayagam, learned Senior
Counsel appeared for the second respondent.
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3.After hearing the learned Senior Counsel on either side at
great length, I suggested that the dispute deserves to be resolved
amicably. The appellants had already entered into a compromise
with those who had purchased the property covered under Ex.B4 Will.
They had also filed a memo dated 22.07.2021 in this regard.
4.Today, Shri.K.Somasundaram who had been conducting the
case on behalf of the appellants all these years appeared before me in
person. The respondents 1 and 2 have ceased to have any interest in
the subject matter of this appeal. That is why, Shri.A.Arumugam,
their learned counsel adopted the submissions of the learned Senior
Counsel Shri.Vallinayagam. Therefore, this is a matter that has to
be dealt with only between Shri.K.Somasundaram and
Mr.Veerapathiran/R3. The parties were requested to spend some
time together and arrive at a compromise. I am happy to record that
the talks between the two ended fruitfully and that a joint compromise
memo signed by both of them has been filed. I requested Mr.Rajkumar
learned counsel to sign on behalf of the counsel on record for the
appellants Mr.Pon Karthikeyan. He accordingly signed in the memo.
The counsel for the third respondent had also signed in the
compromise memo. I am of the view that the compromise is mutually
beneficial. The compromise memo dated 22.07.2021 shall form part of
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the decree. I make it clear that this compromise is only confined to
the property covered under Ex.B4 Will and Ex.B5 settlement deed.
The appellants have already compromised the matter regarding the
property covered under Ex.B4. The dispute in respect of Ex.B5 has
also now been compromised. This will not have any bearing or
implication on the appellants' rights in respect of the other joint family
properties. The counsel for the appellants informs the court that they
intend to file a partition suit against Shanmuga Sundaram and
S.Amarnath very shortly. If such a suit is filed within a period of eight
weeks from the date of receipt of this judgment, the jurisdictional civil
court will dispose of the matter on merits and in accordance with law
within a period of nine months thereafter.
5.The second appeal is disposed of with the above direction. No
costs.
22.07.2021
Index : Yes / no,
Internet : yes / no
skm
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.
https://www.mhc.tn.gov.in/judis/
To:
1.The Subordinate Judge,, Devakottai
2.The District Munsif, Devakottai.
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.91 of 2007
22.07.2021
https://www.mhc.tn.gov.in/judis/
