R.Gopalasamy ... 1St Defendant / vs R.Seetharaman
2021 Latest Caselaw 19287 Mad

                                                                         S.A.(MD)No.675 of 2008

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED: 21.09.2021

                                                    CORAM:

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                            S.A.(MD)No.675 of 2008
                                                     and
                                             M.P.(MD)No.1 of 2010

                   R.Gopalasamy                    ... 1st Defendant / Appellant / Appellant
                                                   -Vs-


                   1.R.Seetharaman
                   2.T.Madasamy
                   3.V.Thangavelu
                   4.R.Rajendran
                   5.R.Rengammal
                   6.R.Rukmani
                   7.R.Rajesh
                   8.R.Rashmi               ... Plaintiff & Defendants 2 to 6 / Respondents /
                                                                     Respondents
                    (R7 & R8 are brought on record as Lrs of the deceased 5th respondent
                   as per order dated 14.09.2018 in C.M.P.(MD)Nos.11842 to 11844 of 2017)


                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                   Code, against the judgment and decree passed in A.S.No.10 of 2006 on the
                   file of the Subordinate Judge, Sivakasi, dated 19.06.2007 confirming the
                   judgment and decree passed in O.S.No.53 of 2003 on the file of the District
                   Munsif, Sattur, dated 28.07.2005.
https://www.mhc.tn.gov.in/judis/


                   1/6
                                                                               S.A.(MD)No.675 of 2008

                                         For Appellant      : Mr.M.Rajapandi
                                         For R2, R4 & R6 : no appearance


                                                       JUDGMENT

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

as under:-

Rengathavasi Naicker

Avudiammal Naranaammal

Renganathan Rengathavasi Mariammal Rengammal Gopalsamy Rukmani Seetharaman @ Ragunathan P.W.2 (D5) (D1) (D6)(D.W.2) Plaintiff (D.W.1) (P.W.1)

2. The suit schedule comprises 26 items. The suit properties

originally belonged to Thavasi Naicker. He had two sons namely Pethappa

Naicker and Rengathavasi Naicker. The partition took place between

Pethappa Naicker and Rengathavasi Naicker in the year 1934.

Rengathavasi Naicker was blessed with two wives namely Avudiammal and

Naranaammal who are sisters. Through Avudiammal, Rengathavasi

Naicker begot two sons and one daughter. Through Naranaammal, he begot

two daughters and two sons. The younger son Seetharaman is the plaintiff

in the present suit. The trial court by judgment and decree dated 28.07.2005 https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.675 of 2008

passed preliminary decree allotting 5/12th share in the suit properties in

favour of the plaintiff. Aggrieved by the same, the first defendant

Gopalasamy brother of Seetharaman filed A.S.No.10 of 2006 before the Sub

Court, Sivakasi. By the impugned judgment and decree dated 19.06.2007,

the first appellate court dismissed the appeal. Challenging the same, this

second appeal came to be filed. The second appeal was admitted on the

following substantial questions of law:-

(1) Whether the Courts below were right in concluding that the properties exchanged, which are subject matter of the suit, under Ex.A17- Exchange Deed, dated 01.12.1999, are absolute properties of the plaintiff, despite the specific admission by the plaintiff in his evidence as P.W.1 that the properties exchanged were actually ancestral properties?

(2) Whether the suit is bad for partial partition?

3. Heard the learned counsel on either side.

4. Before the learned counsel appearing for the appellant could argue

the matter on merits, the learned counsel appearing for the plaintiff / first

respondent submitted that the property which was acquired by the plaintiff

under Ex.A17 can also be included in the suit schedule so as to make it

amenable to partition. I must note that the second appeal was admitted only

on the sole question as to whether the suit was bad for partial partition. The

courts below had concurrently found that the property that was exchanged

by the plaintiff with Durairaj son of Pethappa Naicker was the separate https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.675 of 2008

property of the plaintiff. It is this finding that is assailed in this second

appeal.

5. Responding to the offer made by the learned counsel appearing for

the plaintiff / R1 herein, the learned counsel appearing for the appellant, on

instructions, submitted that the appellant will not have any grievance if the

property that was acquired by the plaintiff under Ex.A17 is also included in

the suit schedule. The impugned judgment and decree passed by the court

below is accordingly modified. The second appeal is partly allowed by

including the property acquired by the plaintiff under Ex.A17 in the suit

schedule. It shall be included as item No.27 in the suit schedule. No

costs.

21.09.2021

Internet : Yes/No Index : Yes/No rmi

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

S.A.(MD)No.675 of 2008

To

1.The Subordinate Judge, Sivakasi.

2.The District Munsif, Sattur.

Copy To The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

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

S.A.(MD)No.675 of 2008

G.R.SWAMINATHAN.J.,

rmi

Judgment made in S.A.(MD)No.675 of 2008 and M.P.(MD)No.1 of 2010

21.09.2021

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