Madras High Court
Saravanan vs Dhanam on 20 April, 2022
A.S.(MD)No.85 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 20.04.2022
CORAM
THE HONOURABLE MS. JUSTICE R.N.MANJULA
A.S(MD).No.85 of 2018
1. Saravanan
2. Subbulaxmi ... Appellants/Plaintiffs
Vs.
1.Dhanam
2. Loganathan
3. Gunavathi ... Respondents/Defendants
Prayer : This Appeal Suit is filed under Section 96 of the Civil Procedure
Code against the judgment and decree dated 02.12.2016 made in O.S.No.174
of 2009 on the file of the court of I Additional District Judge (PCR),
Tiruchirappalli.
For Appellants : Mr.K.Prabhakar
For Respondents : Mr.R.Devaraj
JUDGMENT
This Appeal Suit has been preferred challenging the judgment and decree of
the learned I Additional District Judge (PCR), Trichy, dated 02.12.2016 in
O.S.No.174 of 2016.
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A.S.(MD)No.85 of 2018
2. The appellants are the plaintiffs; the suit is filed for partition and separate
possession along with consequential injunction and for future profits; the suit
properties and other properties are ancestral properties of one Veerappa
Naicker and he died intestate leaving behind his two sons namely, Rengappa
Naicker and Karuppasamy Naicker and they inherited the suit properties and
enjoyed them; Karuppasamy Naicker had two sons and two daughters; the
names of the sons and the daughers are Vellaisamy, Loganathan, Dhanam and
Gunavathy; there was a family partition, which took place on 31.03.1960
between Veerappa Naicker, Rengappa Naicker, Karuppasamy Naicker and the
sons of Karuppasamy Naicker along with the wife of Rengappa Naicker;
however, the partition was not acted upon; on 05.06.1962, re-partition was
made under a registered partition deed between themselves; in the said
partition, 'C' schedule properties were allotted to Vellaisamy; Veerappa
Naicker was allotted with 6 cents land in 'F' schedule with a building; 18 cents
in 'F' schedule with buildings in the same 'F' schedule was allotted jointly to
Vellaisamy and Loganathan; 'B' schedule property was allotted to the share of
Karuppasamy Naicker, who is the father of Vellaisamy; 'E' schedule properties
were allotted to Subbammal; after the death of Karuppasamy as one of the
legal heirs of Karuppasamy Naciker, Vellaisamy is entitled to ¼ share in the
shares of his father; the plaintiffs are the wife and son of the decased
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A.S.(MD)No.85 of 2018
Vellaisamy; taking advantage of the death of Vellaisamy, his brothers denied
the shares to the plaitniffs; hence, the plaintiffs have filed the suit for partition
and separate possession;
3. As per the written statement of the defendants they are the siblings of
Vellaisamy and other children of Karuppasamy Naicker; the defendants 1 to 3
contested the suit by stating that the first plaintiff was not born out of the
wedlock between the deceased Vellaisamy and the second plaintiff; it is true
that the second plaintiff was born to Vellaisamy at some point of time; the
second plaintiff developed illegal intimacy with one Duraisamy leaving the
company of Vellaisamy shortly after the marriage; since she eloped with
Duraisamy her own brother Moorasamy gave a police complaint and police
arrested Duraisamy; even in the year 1978, Vellaisamy filed an Original
Petition for divorce on the ground of adultery against the second plaintiff and
got a decree for desolution of marriage; the plaintiff never claimed any interest
in the suit property during the life time of Vellaisamy; they did not attend the
funeral rites of Vellaisamy; the plaintiffs have no locus standi to file the suit;
after getting divorce from the second plaitntiff, Vellaisamy married one Selvi
in the year 1989; out of his marriage with Selvi, he gave birth to two sons and
one daughter; the legal heirs of Vellaisamy are necessary parties to the suit and
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A.S.(MD)No.85 of 2018
the suit is bad for non-joinder of parties as well; since there is no cause of
action for the suit, the same should be dismissed.
4. On the basis of the above pleadings the learned trial Judge has framed the
following issues:
1. Whether the plaintiffs are entitled for permanent injunction in
respect of 'A' schedule property?
2. Whether the plaintiffs are entitled for permanent injunction in
respect of other properties as sought for?
3. Whether the plaintiffs are entitled to a preliminary decree for
partition of ¼ share in the 'B' schedule properties ?
4. Whether the plaintiffs are entitled to a preliminary decree for
partition of ½ share in the 'B' schedule properties ?
5. Whether the plaintiffs are entitled for future mesne profits as
prayed for?
6. To what other reliefs the plaintiffs are entitled to?
5. During the course of trial, on the side of the plaintiffs, four witnesses were
examined as P.W.1 to P.W.4 and six documents were marked as Ex.A.1 to
Ex.A.6. On the side of the defendants, one witness was examined as D.W.1
and twenty five document was marked as Ex.B.1 to Ex.B.25.
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A.S.(MD)No.85 of 2018
6. At the conclusion of the trial and on considering the materials available on
record, the learned trial Judge has dismissed the suit. Aggrieved over that, the
plaintiffs have filed this appeal.
7. The learned counsel for the appellants/plaintiffs submitted that the judgment
in H.M.O.P.No.34 of 1978 was obtained through impersonation, which would
not take the second appellant/second plaintiff's charcter of legally wedded
wife; the decree passed in the matrimonial litigation for divorce cannot be
taken as the proof of paternity of the first plaintiff; it is further submitted that in
the matrimonial proceedings, there was no specific issue framed in respect of
the paternity of the first plaintiff; in the said judgment, there is no observation
about the legitimacy of the first plaintiff.
8. The learned counsel for the respondents/defendants would submit that the
second plaintiff had developed illicit intimacy with one M.Duraisamy and left
Vellaisamy even within 4 or 5 months after the marriage; having suffered the
decree for divorce on the ground of adultery, the second plaintiff neither
preferred an appeal challenging the above said order nor filed any suit to
declare that the first palintiff is the son born to her through Vellaisamy; all
along her life subsequent to divorce she had chosen to live away from
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A.S.(MD)No.85 of 2018
Vellaisamy by accepting the findings of the judgment rendered in H.M.O.P.No.
34 of 1978; the plaintiffs have not filed any reply statement denying the said
judgment on the ground that the same was obtained by fraud, collusion or by
impersonation; since there is a presumption under Section 114-E of Indian
Evidence Act, the plaintiffs failed to prove that the said judgment was obtained
by committing fraud on the court by impersonation.
9. Points for consideration:
1) Whether the first plaintiff is considered to be the son of late
Vellaisamy and has locus stand to file the suit for partition?
2) Whether the judgment and decree of the trial court is fair
and proper?
10. The fact that the suit properties belonged to Vellaisamy as his share in the
joint family properties is not denied. While the first plaintiff is claimed to be
the son of the deceased Vellaisamy, the defendants denied his status and his
entitlement to the suit properties as the legal heir of Vellaisamy. It was
admitted that Vellaisamy was originally married to the second plaintiff.
However, their marriage got dissolved by virtue of Ex.B.1, the judgment of the
Sub Court, Karur dated 20.07.1981 made in H.M.O.P.No.34 of 1978. On a
perusal of Ex.B.1, it is seen that Vellaisamy has sought the relief of dissolution
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A.S.(MD)No.85 of 2018
of marriage on the ground of adultery. The petition has been filed against the
second plaintiff and her alleged paramour Duraisamy. The order has been
passed on merits after allowing both parties to let-in evidence. The second
plaintiff had actively contested H.M.O.P.No.34 of 1978 and suffered the decree
for divorce on the ground of adultery against her.
11. It has been observed that her erstwhile husband Vellaisamy could not have
had access to her to give birth to the first plaintiff. It has been categorically
observed by the court in the judgment made in H.M.O.P.No.34 of 1978 that
Vellaisamy has proved that Child Saravanan was not born to him. The second
plaintiff did not challenge the above said order and it had attained finality.
Both the plaintiffs have never crossed the life of the deceased Vellaisamy
during his life time. Vellaisamy had married another woman subsequent to his
divorce and gave birth to three children. The above facts and materials would
serve as solid proof to prove that the first plaintiff was not bron to the deceased
Vellaisamy.
12. It is claimed by the second plalintiff that the order in H.M.O.P.No.34 of
1978 was obtained behind her back and she did not contest the suit. According
to the second plaintiff, some one had impersonated in her name and the
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A.S.(MD)No.85 of 2018
judgment for desolution of marriage was obtained by playing fraud on the
court. It is difficult to believe that any other woman not related with
Vellaisamy would come forward to mention her name in divorce proceedings
filed on the ground of adultery. It is to be noted that the Ex.B.1 - judgment of
the Sub Court Karur was of the year 1981 and hence, it is a document which is
more than 30 years old. The authenticated copy of the judgment itself is a
sufficient proof to show its legal character and binding nature on the parties to
the litigation as per Section 41 of the Indian Evidence Act.
13. Despite there was no specific issue as to the paternity of the first plaintiff in
H.M.O.P.No34 of 1978, the fact remains that the ground of adultery is proved.
Further, the court had observed that the husband Vellaisamy had proved that
the first plaintiff was not born to him because of his lack of access to the
second plaintiff at the relevant point of time. The defendants had successfully
proved the same by producing the copy of the judgment made in the earlier
matrimonial proceedings between Vellaisamy and the second plaintiff in
H.M.O.P.No.34 of 1978. Through the conduct of the second plaintiff it is
proved that the first plaintiff was not the son born to the deceased Vellaisamy
and that the marriage between Vellaisamy and the second plaintiff was not in
subsistence now. Under such circumstances, the plaintiffs have got no locus
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A.S.(MD)No.85 of 2018
standi to file the suit for partition by claiming themselves as the legal heirs of
the deceasedVellaisamy. Thus, point No.1 is answered.
14. Subsequent to divorce, Vellaisamy married one Selvi and got three children
through her. Selvi and her children alone can be the legal heirs of the deceased
Vellaisamy. In a suit for partition, in respect of properties of Vellaisamy, no
one else other than the legal heirs of the deceased Vellaisamy can be interested
persons. But the plaintiffs have not chosen to implead the legal heirs of the
deceased Vellaisamy as parties to the suit. Hence, it is right for the learned trial
Judge to hold that the suit is bad for non-joinder of necessary parties.
15. The learned counsel for the appellants cited the judgments reported in
Balamani and Murugesan Vs. S.Balasundaram reported in 2010(1) LW 601
and in Sabasthi Nadar Vs. Savurimuthu Nadar and another reported in 1998
(2) CTC 403 in support of his contention that the non-joinder of necessary
parties cannot be the reason for dismissing the suit for partition. because the
parties can be impleaded in the final decree proceedings. But, those are the
cases in which relationship between the parties and their respective entitlement
to the suit property are not disputed. In the case in hand, the very locus standi
of the plaintiffs is disputed on the ground that the first plaintiff was not the son
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A.S.(MD)No.85 of 2018
born to the deceased Vellaisamy and the marriage between the second plaintiff
and Vellaisamy was not in subsistence.
16. Under such circumstances, it is obligatory on the part of the plaintiffs to
prove the fundamental facts about their entitlement for heirship to the deceased
Vellaisamy and then claim the relief of partition. Since the appellants/plaintiffs
have failed to prove their legal status as the son and the wife of the deceased
Vellaisamy, the learned trial Judge is right in dismissing the suit filed for parti
tion. In my considered view, the judgment of the trial court does not require
any interference. Thus, point No.2 is answered.
In the result, this Appeal Suit is dismissed and the judgment and decree of the
learned I Additional District Judge (PCR), Trichy, dated 02.12.2016, made in
O.S.No. 174 of 2016 is confirmed. No costs.
20.04.2022
Index : Yes/No
Internet : Yes/No
CM
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A.S.(MD)No.85 of 2018
To
1.The I Additional District Judge (PCR), Trichy.
2.The Section Office,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S.(MD)No.85 of 2018
R.N.MANJULA, J.
CM
A.S(MD)No.85 of 2018
20.04.2022
https://www.mhc.tn.gov.in/judis
