Madras High Court
Kumarasamy Nadar (Died) vs Somasundaram Nadar (Died) on 7 April, 2022
S.A.(MD)No.239 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.239 of 2010
1.Kumarasamy Nadar (died) ... Appellant / Appellant / Plaintiff
2.Sellavadivu
3.Selva Jayaseelan
4.Jayakumar
5.Vijayalakshmi
6.Jayaram
7.Rajaram
8.Jagaselvan ... Appellants
(Appellants 2 to 8 brought on record as Lrs of the deceased sole
appellant vide order dated 24.10.2016 in M.P.(MD)Nos.2 & 3 of 2013)
-Vs-
1.Somasundaram Nadar (died)
2.Duraipazham @ Kutty Nadar (died)
3.Annapandi
4.Indira Selvi
(4th respondent who is already on record is recorded as Lrs of the
deceased 1st respodnent vide order dated 24.08.2021 made
in C.M.P.(MD)Nos.5636, 5638, 5641, 5642 & 5643 of 2021)
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S.A.(MD)No.239 of 2010
5.Ravichandran ... Respondents / Respondents / Defendants
6.Nataraja Kani
7.Ravikumar
(Respondents 6 & 7 are brought on record as Lrs of the deceased 1st
respondent vide order dated 24.08.2021 made in C.M.P.(MD)No.5636,
5638, 5641, 5642 & 5643 of 2021)
8.Thangapazham
9.Selva Sekar
10.Jaya Gowri
(Respondents 8 to 10 are brought on record as Lrs of the deceased
2nd respondent vide order dated 24.08.2021 made in
C.M.P.(MD)Nos.5636, 5638, 5641, 5642 & 5643 of 2021)
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree passed in A.S.No.89 of 2007 on the
file of the Subordinate Judge, Valliyoor dated 16.11.2009 confirming the
judgment and decree of the trial court passed in O.S.No.7 of 2004 on the
file of the Principal District Munsif Court, Valliyoor, dated 16.10.2006.
For Appellants : Mr.M.P.Senthil
For R1 to R4 : Mr.D.Saravanan
For R5 : Mr.A.Arumugam
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S.A.(MD)No.239 of 2010
JUDGMENT
The plaintiff in O.S.No.7 of 2004 on the file of the Principal District
Munsif Court, Valliyoor filed this second appeal. During the pendency of
the second appeal, he passed away and his legal heirs came on record.
Likewise, some of the respondents also passed away and their legal heirs
have also been brought on record.
2. The original appellant filed the said suit seeking partition of 1/4th
share in the suit schedule properties. The suit properties comprised two
schedules namely 1st schedule & 2nd schedule. According to the plaintiff,
the 1st schedule properties were jointly purchased by the plaintiff and his
three brothers namely D1, D2 & D3. The 2 nd schedule properties belonged
to their mother Ramalakshmi. Since the defendants did not come forward
for amicably partitioning the same, the suit was laid. D4 is the daughter of
the first defendant. The other defendants are the subsequent purchasers of a
portion of the 1st schedule property. The defendants filed written statement
controverting the plaint averments. Based on the divergent pleadings, the
trial court framed the necessary issues. The plaintiff examined himself as
P.W.1 and marked Ex.A1 to Ex.A8. His brothers examined themselves as
D.W.1 to D.W.3. EX.B1 to Ex.B36 were marked. An Advocate
Commissioner was appointed and his report was marked as Ex.C1. After
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S.A.(MD)No.239 of 2010
consideration of the evidence on record, by judgment and decree dated
16.10.2006, the suit was dismissed. Challenging the same, the plaintiff
filed A.S.No.89 of 2007 before the Sub Court, Valliyoor. By the impugned
judgment and decree dated 16.11.2009, the first appellate court confirmed
the decision of the trial court and dismissed the appeal. Challenging the
same, this second appeal came to be filed. On the last occasion, the
substantial questions of law were formulated as to whether the courts below
were justified in non-suiting the plaintiff on merits after rendering a finding
that the details regarding the previous partition have not been set forth in
the plaint and whether the courts below ought to have granted relief atleast
in respect of the 2nd schedule property.
3. 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
and set aside the impugned judgment and decree and grant preliminary
decree as prayed for.
4. Per contra, both the learned counsel appearing for the respondents
submitted that the impugned judgment and decree do not call for any
interference.
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S.A.(MD)No.239 of 2010
5.I carefully considered the rival contentions and went through the
evidence on record.
6. The plaintiff came out with a specific contention that the 1st
schedule properties were jointly purchased by four brothers including
himself under Ex.A1, Ex.A2, Ex.A3 & Ex.A4. He further claimed that the
2nd schedule properties were also purchased by four brothers in the name of
their mother Ramalakshmi Ammal under Ex.A5 to Ex.A7. The defendants
have convincingly demonstrated before the trial court that apart from the
suit schedule properties, ancestral properties were also available. The
defendants took a stand that there was oral partition among four brothers in
three stages namely in the year 1987, again in the year 1970 and again in
the year 1987 after the demise of the mother. According to them, the
properties standing in the name of the mother and the 1st schedule property
were all orally partitioned and that they have also been independently dealt
with and hence, there was no cause of action for maintaining the suit for
partition. The sale deeds executed by the plaintiff in respect of the ancestral
properties were also marked before the trial court. The trial court seriously
faulted the plaintiff for not making a full and frank disclosure in the plaint.
The suit was filed only in January 2004. He was a party to quite a few
transactions before filing of the suit. He was obliged to set out all the facts
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S.A.(MD)No.239 of 2010
in the plaint. He did not do so. That is why, the trial court repeatedly held
that the suit was hit by under Order 2 Rule 2 of C.P.C. Thereupon, the
plaintiff tried to come out with an explanation that the ancestral properties
alone were partitioned and that the properties jointly purchased by them as
well as the properties belonging to the mother were not the subject matter of
any partition. This appears to be a clear after thought.
7. The learned counsel appearing for the respondents took me
through the testimony of P.W.1. In quite a few places, the plaintiff had
admitted that there was a partition of the properties. It is well settled that a
litigant who suppresses material facts ought to be shown the door at the
very threshold. Therefore, I sustain the approach of the courts below in
non-suiting the plaintiff. But then, non-suiting should have been only on
the aforesaid grounds and not on merits.
8. The trial court rightly pointed out that while filing proof affidavit,
the plaintiff had confined his prayer for partition only in respect of the 2 nd
schedule properties. Before me, the learned counsel produced a copy of the
sale deed dated 28.07.2011 (settlement deed) executed by the plaintiff in
favour of his sons Jeyakumar and Rajaram, in which, it stated that the
property purchased by the four brothers under Document No.722 / 1969 had
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S.A.(MD)No.239 of 2010
already been orally partitioned. Though this document has not been
formally marked before me and I am not supposed to take the same into
account, in order to satisfy my conscience that the courts below have
correctly approached the issue, I looked into the same and am also making a
reference to it in this judgment.
9. The 2nd schedule property admittedly stood in the name of the
mother. The defendants have taken a stand that after the demise of the
mother Ramalakshmi, there was oral partition among the family members.
But the details regarding the said partition are absolutely wanting. There is
nothing on record to show that the plaintiff was allotted any portion of the
2nd schedule properties. Therefore, answering the substantial questions of
law in favour of the appellants, even while sustaining the judgment and
decree passed by the courts below in respect of the 1st schedule property, I
grant liberty to the appellants to file a fresh suit for partition in respect of
the 2nd schedule properties alone.
10. With this liberty to the appellants, the second appeal stands
dismissed. No cost.
07.04.2022
Internet : Yes/No
Index : Yes/No
rmi
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.239 of 2010
G.R.SWAMINATHAN.J.,
rmi
To
1.The Subordinate Judge, Valliyoor.
2.The Principal District Munsif Court, Valliyoor.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.239 of 2010
07.04.2022
https://www.mhc.tn.gov.in/judis
