Madras High Court
Alagarsamy vs Karupayee (Died) on 7 April, 2022
1 S.A.(MD)No.841 OF 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.04.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.841 of 2010
Alagarsamy ... Appellant / 1st Appellant /
1st Defendant
Vs.
1. Karupayee (Died)
2. Easwari (Died)
3. Malliga (Died)
4. Ponram ... Respondents 1 to 4 /
Respondents 1 to 4 /
Plaintiffs 1 to 4
5. Subramani ... Respondent No.5 / 2nd Appellant /
2nd Defendant
6. Pappathi
7. Kaliammal
8. Vijayalakshmi
9. Murugammal (Died)
Vellaiammal (Died)
Perumal Gounder (Died)
10. Bommana Gounder
11. Bommanasamy
https://www.mhc.tn.gov.in/judis
1/8
2 S.A.(MD)No.841 OF 2010
12. Palaniappan
13. Muthu Lakshmi ... Respondents / Respondents 5 to 12/
Defendants 3 to 12
14. Suresh
15. Minor Jaganathan
16. Minor Thangammal
(R-15 & R-16 minors are rep. through his father and
guardian R-17 Dharmaraj)
17. Dharmaraj
(R-14 to R-17 are brought on record as LRs. of the deceased
R-3 vide order dated 09.04.2014 in M.P.(MD)Nos.1 to 3 of 2012)
(R-2, R-4 & R-14 to R-17 were recorded as LRs. of the
deceased 1st respondent vide Order dated 23.09.2015)
18. Murugan
19. Lakshmi
(Respondents 18 & 19 were suo motu brought on record as
LRs. of the deceased 2nd respondent vide Order dated
14.03.2022)
20. Solamalai
21. Muthulakshmi
22. Chitra
23. Muthusamy
(R-20 to R-23 were suo motu brought on record as LRs. of
the deceased 9th respondent vide Order dated 14.03.2022)
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree dated 18.3.2010 in
A.S.No.274 of 2005 on the file of the Additional Sub Court,
Dindigul, confirming the Judgment and Decree dated
https://www.mhc.tn.gov.in/judis
2/8
3 S.A.(MD)No.841 OF 2010
22.07.2005 in O.S.No.23 of 2004 on the file of the District
Munsif cum Judicial Magistrate, Vedasanthur.
For Appellant : Mr.A.Arumugam,
for M/s.Ajmal Associates.
For R-4 : Mr.S.Anand Chandrasekar
***
JUDGMENT
The first defendant in O.S.No.23 of 2004 on the file of
the District Munsif-cum-Judicial Magistrate Court,
Vedasanthur, is the appellant in this second appeal.
2. The suit was for partition. The case of the plaintiffs
is that the suit items 1 and 2 originally belonged to one Nalla
Boyan and that out of the income generated from the said two
items, remaining four items were purchased in the name of
Kali Boyan, elder son of Nalla Boyan. Nalla Boyan had another
son by name Ramasamy Boyan. The plaintiffs claimed to be
the legal heirs of Ramasamy Boyan and demanded half share
in the suit properties. Defendants 1 to 6 are none other than
https://www.mhc.tn.gov.in/judis
the legal heirs of Kali Boyan. Defendants filed written
statement controverting the plaint averments. According to
them, the suit items 3 to 6 are the self-acquired properties of
Kali Boyan and that while conceding suit items 1 and 2
belonged to Nalla Boyan, they claimed that there was an oral
partition between Kali Boyan and Ramasamy Boyan some time
in the year 1958. Suit items 1 and 2 were allotted to Kali
Boyan in the said oral partition. They also contended that Kali
Boyan dealt with suit items 1 and 2 as his exclusive properties
by mortgaging them. The said items were brought to sale
through Court process. Kali Boyan paid the decretal amount
and got the properties released. If really, suit items 1 and 2
were also joint family properties of Kali Boyan and Ramasamy
Boyan, certainly Ramasamy Boyan would also have stepped in.
That he did not do so and remained quiet indicates that suit
items 1 and 2 were allotted to Kali Boyan in the oral partition.
The defendants also raised few other contentions. Based on
the divergent pleadings, the trial Court framed necessary
issues. The first plaintiff examined herself as P.W.1 and one
Ramasamy was examined as P.W.2. Ex.A.1 to Ex.A.12 were
marked. On the side of the defendants, three witnesses were
https://www.mhc.tn.gov.in/judis
examined. Ex.B.1 to Ex.B.34 were marked. After consideration
of the evidence on record, the trial Court by judgment and
decree dated 22.07.2005 rejected the claim of the plaintiffs as
regards suit items 3 to 6 and passed preliminary decree
granting half share in suit items 1 and 2. Aggrieved by the
same, while the plaintiffs filed A.S.No.273 of 2005 before the
Additional Sub Court, Dindigul, the defendants filed A.S.
No.274 of 2005 before the very same Court. The first appellate
Court dismissed both the appeals and confirmed the decision
of the trial Court. Questioning the same, this second appeal
came to be filed.
3. The learned counsel appearing for the appellant
reiterated all the contentions set out in the memorandum of
grounds. He pointed out that Nalla Boyan had two daughters
apart from two sons. Since this is for a suit for partition, the
daughters also ought to have been impleaded. The fact that
they have not done so is fatal. He also would point out that
from Ex.B.27, one can easily come to the conclusion that the
properties comprised in Survey No.1079/2, Survey No.1128/4
and Survey No.1135/1 in Vedasanthur stood in the name of
https://www.mhc.tn.gov.in/judis
Nalla Boyan, Azhagiri Boyan and Solai Boyan. Azhagiri Boyan
is none other than the father of Nalla Boyan. Regarding Solai
Boyan, the learned counsel on either side are unable to shed
any light. Ex.B.28 indicates that the portions of the said survey
numbers were mutated in the name of the first plaintiff
Karuppayi. Ex.B.29 also indicates that 15 ares out of Survey
No.1079/2A was mutated in the name of the third plaintiff and
the fourth plaintiff. Ex.B.30 is also on the same lines.
However, in the suit schedule, these items have not been
found. A person who seeking partition is obliged to include all
the joint family properties. In this case, that has not been
done. The learned counsel appearing for the appellant also
submitted that the Courts below erred in rejecting the theory
of oral partition. In as much as the Courts below concurrently
held that the oral partition was not proved as regards suit
items 1 and 2, I am not inclined to interfere with the said
finding. But I find force in the other two contentions, namely,
non-joinder of legal heirs of the daughters of Nalla Boyan and
non-inclusion of the items set out in Ex.B.27. On the last
occasion the substantial question of law as to whether the
impugned judgment and decree are liable to be interfered
https://www.mhc.tn.gov.in/judis
with on the ground of non-joinder of necessary parties covered
under Ex.B.2 was formulated. I answer the substantial
question of law in favour of the appellant and set aside the
impugned judgment and decree in so far as the suit items 1
and 2 are concerned.
4. This second appeal is allowed and the matter is
remanded to the file of the trial Court. The parties shall
appear before the trial Court on 29.04.2022. The plaintiffs are
directed to file an application for including the properties
covered under Ex.B.27 and also impleading the legal heirs of
the daughters of Nalla Boyan. If the plaintiffs fail to carry out
the amendment within a reasonable period, they will be
non-suited. No costs. Consequently, connected miscellaneous
petition is closed.
07.04.2022
Index : Yes / No
Internet : Yes/ No
PMU
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
G.R.SWAMINATHAN,J.
PMU
To:
1. The Additional Sub Judge,
Dindigul.
2. The District Munsif cum Judicial Magistrate,
Vedasanthur.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
S.A.(MD)No.841 of 2010
07.04.2022
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
