Madras High Court
Padmakshi Pillai Thankachi vs Baby Girija Pillai Thankachi on 6 September, 2021
1 S.A.(MD)No.133 OF 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.09.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)Nos.133 of 2014 & 362 of 2016 and
M.P.(MD)No.1 of 2014 & C.M.P.(MD)No.7480 of 2020
S.A.(MD)No.133 of 2014
Padmakshi Pillai Thankachi ... Appellant / Appellant /
Plaintiff
Vs.
1. Baby Girija Pillai Thankachi
2. Pushkala Kumari
3. Jeyakumar
4. Sreekumar
5. Harikumaran Thampi ... Respondents/Respondents/
Defendants
Prayer: Second appeal filed under Section 100 of
C.P.C., to allow the second appeal and set aside the judgment
and decree in A.S.No.63 of 2012 on the file of the I Additional
Subordinate Judge at Nagercoil, Camp at Padmanabhapuram,
dated 13.08.2013 confirming the judgment and decree passed
in O.S.No.25 of 2010 on the file of the Principal District
Munsif, Padmanabhapuram, dated 23.04.2012.
For Appellant : Mr.V.M.Balamohan Thambi
For R-1 : Mr.Arumugam,
for Mr.K.Sreekumaran Nair
For R-4 : Mr.P.Thiagarajan
***
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2 S.A.(MD)No.133 OF 2014
S.A.(MD)No.362 of 2016
Baby Girija Pillai Thankachi ... Appellant / Cross Appellant /
1st Defendant
Vs.
1. Padmakshi Pillai Thankachi
2. Pushkala Kumari
3. Jeyakumar
4. Sreekumar
5. Harikumaran Thampi ... Respondents/Respondents 2 to 5/
Defendants 2 to 5
Prayer: Second appeal filed under Section 100 of
C.P.C., to allow the second appeal and set aside the judgment
and decree in Cross Appeal A.S.No.63 of 2012 on the file of
the I Additional Subordinate Judge at Nagercoil, Camp at
Padmanabhapuram, dated 13.08.2013 confirming the
judgment and decree passed in O.S.No.25 of 2010 on the file
of the Principal District Munsif, Padmanabhapuram, dated
23.04.2012.
For Appellant : Mr.Arumugam,
for Mr.K.Sreekumaran Nair
For R-1 : Mr.V.M.Balamohan Thambi
For R-4 : Mr.P.Thiagarajan
***
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3 S.A.(MD)No.133 OF 2014
JUDGMENT
These second appeals arise out of a partition suit in
O.S.No.25 of 2010 on the file of the Principal District Munsif,
Padmanabhapuram.
2. The appellant in S.A.No.133 of 2014 was the
plaintiff in the suit, while the appellant in the other appeal was
the first defendant in the suit. The genealogy is as under:-
Bhagavathi Pillai
Wife 1/5 Daugther 1/5 1st Defendant 1/5 2nd Defendant 1/5 3rd Defendant
Saraswathy Plaintiff Daughter Daughter Son
Pillai Thankachi
Saraswathy Pillai Thankachi
Plaintiff 1st Defendant 2nd Defendant 3rd Defendant 4th Defendant
Daughter Daughter Daughter Son Son, through
second husband
Raman Pillai
5th Defendant
Son through
second husband
Raman Pillai
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3. Bagavathi Pillai got married to Saraswathy Pillai
Thankachi and through the said wedlock, the appellants
herein and one other daughter and son were born. Bagavathi
Pillai passed away in the year 1961. Saraswathy Pillai
Thankachi got remarried and through the second marriage,
two sons were born. Saraswathy Pillai Thankachi passed away
on 26.04.2007. Thereafter, the present suit was instituted by
the elder daughter born through Bagavathi Pillai. According to
her, the suit schedule was divided as ' A ' schedule and ' B '
schedule. According to the plaintiff, ' A ' schedule properties
belonged to their father Bagavathi Pillai and that she is
entitled to 1/5th share therein. She further claimed that ' B '
schedule property belonged to the mother Saraswathy Pillai
Thankachi and that she is entitled to 1/6th share. The first
defendant Baby Girija Pillai Thankachi, sister of the plaintiff
claimed a higher share in the ' B ' schedule property. The
fourth defendant, the son born to Saraswathy Pillai Thankachi
through the second marriage contested the suit proceedings.
The plaintiff examined herself as P.W.1 and marked Ex.A.1 to
Ex.A.6. The first defendant examined herself as D.W.1 and the
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fourth defendant examined himself as D.W.2. Ex.B.1 to Ex.B.
14 were marked. After a consideration of the evidence on
record, the trial Court by judgment and decree dated
23.04.2012 dismissed the suit. Aggrieved by the same, the
plaintiff filed A.S.No.63 of 2012 before the I Additional
Subordinate Court at Nagercoil, Camp at Padmanabhapuram.
The first defendant also filed cross appeal therein. Both the
appellants filed I.As. for adducing additional evidence and the
first appellate Court allowed the petitions filed under Order
41, Rule 27 C.P.C. and marked Ex.A.7 to Ex.A.9 and Ex.B.15 to
Ex.B.23 as additional documents. After considering the
evidence on record, by judgment and decree dated
13.08.2013, the appeal as well as the cross appeal were
dismissed. Challenging the same, these second appeals have
been filed.
4. S.A.(MD)No.133 of 2014 is filed by the plaintiff,
while S.A.(MD)No.362 of 2016 is filed by the first defendant.
The second appeals were admitted on the following
substantial questions of law:-
“ i) Whether the Courts below is correct in law in
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accepting Ex.B.9 Will deed especially when the same has not
been proved in accordance with the provisions of Section 63
(c) of the Indian Succession Act and Section 68 of the Indian
Evidence Act?
ii) Whether the Courts below is right in dismissing the
suit especially when no plea was taken in the written
statement by D4 and D5 that the suit was bad for want of
inclusion of certain other items of suit properties?
iii) Whethe the Courts below have failed to consider
the material evidence Ex.A.7 to Ex.A.9 and Ex.B.9?
iv) Whether the Courts below was right in law when it
was held that the plaintiff/appellant has not proved correlation
between old survey number and resurvey number especially
when the defendant document Ex.B.9 Will deed itself proved
the correlation between old survey number and resurvey
number? ”
5. Heard the learned counsel on either side.
6. It is seen that before filing suit, the plaintiff issued
Ex.A.1 notice dated 30.12.2008 to the defendants. After
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receiving the notice, before filing suit, defendants 4 and 5 sold
the second item of suit ' B ' schedule property in favour of one
Suganthi vide Ex.B.5 dated 08.10.2010. However, the said
subsequent purchaser was not impleaded as a defendant. The
Court below had dismissed the partition suit primarily on the
following grounds:-
a) The plaintiff as well as the first defendant had been
allotted certain items of property that belonged to their father
Bagavathi Pillai vide Ex.B.8 dated 19.10.1974. The plaintiff
had not whispered about the execution of certain settlement
deeds in her favour. D.W.1 admitted in her testimony that
some of the items covered under Ex.B.1 belonged to the father
Bagavathi Pillai. However, those items were not included in
the suit schedule. Therefore, the Courts below felt that the
suit was bad for partial partition.
b) The subsequent purchaser Suganthi was not
impleaded as a defendant. The suit was therefore hit by
non-joinder.
c) The plaintiff as well as the first defendant have not
established that all the suit ' A ' schedule items belonged to
the father. Though some documents were marked in this
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regard, correlation between the documents adduced as
additional evidence and the suit ' A ' schedule was not
established.
7. Though all the three grounds are apparently well
founded, on a closer scrutiny I have to sustain the contention
of the learned counsel appearing for the appellants that due
opportunity was not given to the appellants. The first appellate
Court felt that the additional evidence projected by the
appellants are relevant and that therefore, they deserve to be
brought on record as Ex.A.7 to Ex.A.9 and Ex.B.15 to Ex.B.23.
However, the first appellate Court chose to deny the
opportunity of the appellants herein to let in oral evidence.
Only if the oral evidence had been allowed to be adduced, the
appellants could have shown the correlation between the
properties covered by the additional evidence and what was
included in the suit ' A ' schedule. Therefore, I have to
necessarily answer the fourth substantial question of law in
favour of the appellants.
8. It is true that the subsequent purchaser Suganthi
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was not impleaded as a defendant. But it is relevant to note
that in the written statement, there is absolutely no pleading
in this regard. The alienation under Ex.B.5 had been taken
place, after defendants 4 and 5 received the suit notice. The
suit notice is dated 30.12.2008 and the suit itself came to be
filed on 20.01.2010. The alienation had taken place on
08.01.2010. The fourth defendant had also not even whispered
about the sale in favour of Suganthi in his written statement.
Taking note of the conduct of the fourth defendant, I am of the
view that the plaintiff deserves to be given one more
opportunity. Of course, if the said document had surfaced
during evidence, the plaintiff could have filed a petition for
impleading the subsequent purchaser also. But taking note of
the conduct of the fourth defendant, interest of justice require
that the plaintiff should be given one more opportunity.
9. Substantial questions of law 1 to 3 are accordingly
answered and the impugned judgment and decree is set aside.
The matter is remanded to the file of the trial Court.
10. The stand of the fourth defendant is that the
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mother Saraswathy Pillai Thankachi had executed a Will dated
17.10.1978(Ex.B.9). The evidence already taken will remain on
record. The defendants are permitted to adduce further
evidence to prove the due execution of Ex.B.9. It is also open
to the parties on either side to file application for bringing the
left out properties. The plaintiff is directed to file application
for impleading the subsequent purchaser. The parties are
directed to appear through video-conferencing or through
counsel on 07.02.2022 before the Court below. The parties are
also at liberty to file additional pleadings.
11. This second appeal is allowed. No costs.
Consequently, connected miscellaneous petitions are closed.
06.09.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: 1. 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.
2. Web copy of this order shall be
uploaded on 24.01.2022.
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To:
1. The I Additional Subordinate Judge at Nagercoil,
Camp at Padmanabhapuram.
2. The Principal District Munsif,
Padmanabhapuram.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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Note : Web copy of this order
shall be uploaded on
24.01.2022.
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)Nos.133 of 2014 & 362 of 2016
https://www.mhc.tn.gov.in/judis
06.09.2021
https://www.mhc.tn.gov.in/judis
