L.Nagammai vs Gandhimathi
2021 Latest Caselaw 15301 Mad

Citation : 2021 Latest Caselaw 15301 Mad
Judgement Date : 30 July, 2021

Madras High Court

L.Nagammai vs Gandhimathi on 30 July, 2021

                                                                              S.A.(MD)No.954 of 2009

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                             DATED: 30.07.2021

                                                     CORAM:

                              THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                           S.A.(MD)No.954 of 2009
                   1.L.Nagammai

                   2.M.N.Alagappan

                   3.Naryanan @ Kittu          ... Defendants / Appellants / Appellants

                                                     -Vs-


                   1.Gandhimathi
                   2.Alagammai
                   3.Nachammai
                   4.Muthukala
                   5.Arunachalam @ Sekar
                   6.Umayal
                   7.Annapoorani
                   8.Dhanalakshmi                     ... Plaintiffs / Respondents /
                                                                 Respondents 1 to 8
                   PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
                   Code, against the Judgment and Decree in A.S.No.20 of 2004, dated
                   10.12.2004 on the file of the District Court, Sivagangai as reversed in
                   O.S.No.61 of 2000 on the file of the Sub Court, Devakottai, dated
                   21.10.2003.
                                     For Appellants         : Mr.Srinivasan
                                                             for Mr.R.Nandhakumar
                                      For R1 to R8          : Mr.S.Madhavan
https://www.mhc.tn.gov.in/judis/


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                                                                              S.A.(MD)No.954 of 2009



                                                       JUDGMENT

This second appeal arises out of a partition suit. The genealogy is as

follows:-

M.Narayanan

N.Muthiah

Narayanan

1st Wife 2nd Wife Gandhimathi (1st Plaintiff) Alagammai (died)

Daughter Son Son 1) Alagammai-2nd Plaintiff

Nagammai Alagappan Kittu @ 2) Nachammai-3rd Plaintiff

(D1) (D2) Narayanan 3) Muthukala -4th Plaintiff

(D3) 4) Arunachalam @ Sekar

- 5th Plaintiff

5) Umayal - 6th Plaintiff

6) Annapoorani- 7th Plaintiff

7) Dhanalakshmi-8th Plaintiff

https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.954 of 2009

2. The plaintiffs in O.S.No.61 of 2000 on the file of the Sub Court,

Devakottai, are the second wife of Narayanan and the children born through

the said wedlock. The defendants are the children born to Narayanan

through the first wife Alagammai. It is not in dispute that the first plaintiff

Gandhimathi got married to Narayanan after the demise of the first wife

Alagammai. There is no dispute that Narayanan died intestate. Since the

eight plaintiffs and the three defendants are the surviving legal heirs of

Narayanan, each of them would be entitled to 1/11th share in the suit

properties. Claiming the same, the partition suit came to be instituted.

3.The defendants filed written statement controverting the plaint

averments. They set up a plea that even during his life time, Narayanan

made a family arrangement. They also contended that Arunachalam @

Sekar born to Gandhimathi was given adoption and that therefore, he can no

longer claim the status as the son of Narayanan. Based on the divergent

pleadings, issues were framed. The first plaintiff as well as the 5th plaintiff

examined himself as P.W.1 and P.W.2. Ex.A1 to Ex.A9 were marked. The

second defendant examined himself as D.W.1. Three other witnesses were

examined on the side of the defendants. Ex.B1 to Ex.B24 were marked.

After a consideration of the evidence on record, the trial Court by judgment

and decree dated 21.10.2003 granted preliminary decree allotting 1/11th https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.954 of 2009

share for each of the plaintiffs. Aggrieved by the same, the defendants filed

A.S.No.20 of 2004 on the file of the District Judge, Sivagangai. During the

relevant time, Tamil Nadu Amendment Act 1 of 1990 alone was in force and

the Central Act 39 of 2005 amending Section 6 of the Hindu Succession

Act, 1956 had not yet been enacted. Since some of the plaintiffs had

already got married by the time Tamil Nadu Act 1 of 1990 was brought into

force, their share in the suit schedule was reduced. Not satisfied with the

said modification, the defendants have filed this second appeal. The second

appeal was admitted on the following substantial questions of law:-

“(I) Whether the defendants have not discharged the

burden cast on them and proved the plea of adoption by producing

documents kept in temple in regular course of business and signed by

the kartha of joint Hindu Family and also on admission by the

prosecution wintess?

(II) Whether the letters written by the kartha of joint

Hindu Family are not sufficient to prove the plea of prior partition?”

4. The learned counsel appearing 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.

Per contra, the learned counsel for the respondents submitted that the

impugned judgment and decree do not call for any interference. https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.954 of 2009

5. I carefully considered the rival contentions and went through the

evidence on record.

6. Matters argued in this second appeal are essentially factual in

nature. The Courts below have concurrently found that the plea of prior

partition is liable to be rejected. The said finding has not been shown to be

perverse. In exercise of jurisdiction under Section 100 of C.P.C., I decline

to interfere with the same. The fact remains that the suit properties stood in

the name of Narayanan and he passed away intestate. The parties herein

namely 8 plaintiffs and 3 defendants are the surviving legal heirs.