Madras High Court
Muthusamy vs Soliyammal (Died) on 28 July, 2021
S.A.(MD).No.802 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD).No.802 of 2014
and
M.P(MD).No.1 of 2014
and
C.M.P.(MD).No.5092 of 2021
Muthusamy ... Appellant
Vs
1.Soliyammal (died)
2.Ramasamy
3.Kulandayee Ammal
4.Nataraj @ Subramani
5.Logambal
6.Lakshmi
7.Nallusamy ... Respondents
Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code,
against the Decree and Judgement dated 29.04.2014 passed in A.S.No.8 of
2013 on the file of the Principal District Court, Karur, by confirming the
decree and judgment passed in O.S.No.118 of 2005 on the file of the
Principal Subordinate Court, Karur, dated 12.10.2012.
1/8
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S.A.(MD).No.802 of 2014
For Appellant : Mr.E.K.Kumaresan
For R2 : No appearance
For R3 : Mr.D.Raj Kumar
For R4 & R7 : Batta with return due
For R5 & R6 : Mr.Senthil
JUDGEMENT
The 3rd defendant in O.S.No.118 of 2005, on the file of the learned
Principal Subordinate Judge, Karur, is the appellant in this second appeal.
The following genealogy will help to understand the facts better.
Pasuvayee Gounder (Died)
Soliyammal (W1) (died) Nallammal (w2) (Died)
Soliyammal (P) Ramasamy Kulandayee Muthusamy
Ammal
(D1) (D2) (D3)
Admittedly, Soliyammal predeceased her husband. Only after the death of
first wife Soliyammal, Pasuvayee Gounder married Nallammal.
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S.A.(MD).No.802 of 2014
2. The plaintiff Soliyammal is the daughter born to the Pasuvayee
Gounder through his first wife, who was also known as Soliyammal. After
the demise of Soliyammal, Pasuvayee Gounder married one Nallammal and
through her the defendants (two sons and one daughter) were born. The suit
properties are the self acquired properties of Pasuvayee Gounder. That is not
in dispute. Pasuvayee Gounder appears to have died in the year 1985.
Claiming her ¼ share in the suit property, the present suit was laid. The sons
born through Nallammal are arrayed as D1 and D3. The daughter born
through Nallammal was shown as the second defendant.
3. The sons of Nallammal filed their written statement contending that
the plaintiff's rights have been extinguished on account of ouster. Based on
the rival pleadings, the trial Court framed the necessary issues. By judgment
and decree dated 12.10.2012, the trial Court granted preliminary decree in
favour of the plaintiff granting her ¼th share in the suit properties.
Aggrieved by the same, the third defendant/appellant herein filed A.S.No.8
of 2013 before the learned Principal District Judge, Karur. By the impugned
judgment dated 29.04.2014, the appeal was dismissed. Challenging the
same, this second appeal came to be filed.
4. The second appeal was admitted on the following substantial
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S.A.(MD).No.802 of 2014
question of law:
“Whether the Courts below misapplied the
law relating to succession to the properties of the
mother of the plaintiff by holding that the entire
property should go to the plaintiff, when the
deceased was survived not only by the plaintiff but
also by the husband of the deceased?”
5. During the pendency of this second appeal, the plaintiff
Soliyammal passed away and her legal heirs have been brought on record as
respondents 4 to 7.
6. The learned counsel appearing for the appellant primarily
contended that the suit was clearly bad for partial partition. According to
him, it is well settled that a suit for partial partition without including all the
joint family properties was clearly not maintainable. He placed reliance on
the decision of the Hon'ble Supreme Court reported in 1994-4-SCC-294
(kenchegowda represented by legal representatives Vs.Siddegowda) and
the decision of the Madras High Court reported in 2006-1-CTC-267
(Gandhi Vs. Saminatha Gounder and another). He drew my attention to
the testimony of P.W.1. The plaintiff in her cross examination admitted that
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S.A.(MD).No.802 of 2014
some of the properties belonging to her mother, have not been included in
the suit schedule. She also admitted that in respect of those properties, she
has not entered into any partition with her brothers. The learned counsel for
the appellant would therefore contend that on the own showing of the
plaintiff, this Court must hold that the suit was bad for partial partition. He
also submitted that the Courts below completely misconstrued Section 15(1)
of the Hindu Succession Act 1956. It may be true that the plaintiff's mother
Soliyammal had inherited certain properties from her father. But, when she
passed away, those properties must devolve in equal shares on the plaintiff
and Pasuvayee Gounder. Only if the plaintiff's mother had died without any
issues, the properties inherited from her father would go back to the legal
heirs of the father and would not devolve on the husband. But where a
woman had left behind her son or a daughter, then Section15 (2) (b) will not
apply. This aspect of the matter was completely lost sight of by the Courts
below. On this ground, the learned counsel would distinguish the decision
reported in (1994) 5 SCC 761. The said decision will apply if the deceased
woman had not left behind a son or daughter. When that was not the case,
question of invoking Section 15(2) (b) of the Hindu Succession Act, 1956
will not at all arise.
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S.A.(MD).No.802 of 2014
7. Per contra, the learned counsel appearing for the respondents
submitted that the impugned judgment does not call for any interference.
8. I carefully considered the rival contentions and went through the
evidence on record.
9. No doubt, the defence of partial partition is a formidable one. The
proposition advanced by the learned counsel for the appellant cannot be
disputed. But, then as rightly pointed out by the learned counsel for the
plaintiff, the written statement is wholly silent on this aspect. If the
appellant had pleaded in his written statement that the suit was bad for
partial partition and issues have been framed on that basis, certainly, the
appellant would be entitled to canvas the said contention before this Court.
Having failed to raise the issue of partial partition in the written statement, it
is not open to the appellant to canvas the same before this Court.
10. Therefore, I decline to interfere with the impugned judgment
passed by the Court below. It is for this reason, the question of law cannot
also be answered in favour of the appellant. A person who failed to raise the
plea before the Court below cannot raise it as a substantial question of law
before this Court. However, I give liberty to the appellant herein to file an
independent suit for partition in respect of the items, which according to
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S.A.(MD).No.802 of 2014
him, have been left out by the plaintiff. The learned counsel for the plaintiff
undertakes before this Court that if such a suit is filed, its maintainability
will not be questioned. The said case will be contested only on merits. The
interpretation as regards Section 15 of the Hindu Succession Act, 1956 and
its applicability to the facts are left open. Whatever findings that have been
rendered by the Court below in this regard also stand vacated. They will not
come in the way of the appellant from establishing his claim in respect of
the left out properties.
11. With this liberty and clarification in favour of the appellant, the
second appeal is dismissed. No costs. Consequently, connected
miscellaneous petitions are closed.
28.07.2021
Index : Yes / No
Internet : Yes/ No
Speaking Order/Non Speaking Order
sbn
To:
1.The Principal District Court, Karur.
2.The Principal Subordinate Court, Karur.
https://www.mhc.tn.gov.in/judis/
S.A.(MD).No.802 of 2014
G.R.SWAMINATHAN,J.
sbn
S.A.(MD).No.802 of 2014
and
M.P(MD).No.1 of 2014
and
C.M.P.(MD).No.5092 of 2021
28.07.2021
https://www.mhc.tn.gov.in/judis/
