Madras High Court
T.Gopinathan vs Gomathi Thillaikarasi on 1 August, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 01.08.2022
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
S.A.No.355 of 2012 &
C.M.P.Nos.1529, 1530, 1532, 8533, 8534 & 20228 of 2021 &
M.P.No.1 of 2012 &
C.R.P.(NPD).No.3723 of 2012
1.T.Gopinathan
2.T.Natarajan
3.R.Vasuki
4.R.Vijaya Baskar ...Appellants
Vs.
1.Gomathi Thillaikarasi
2.Meena
3.Muthurani
4.Babji ... Respondents
The Second Appeal filed under Section 100 of CPC, against the
judgment and decree made in A.S.No.133 of 2010 dated 15.07.2011
on the file of the II Additional Subordinate Judge, Salem confirming
the judgment and decree dated 01.04.2010 made in O.S.No.798 of
2007 on the file of I Additional District Munsif Court at Salem.
For Appellants : Mr.R.Kannan
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2
JUDGMENT
The appellants were the defendants 1 to 4 in O.S.No.798 of
2007, which was on the file of the District Musiff Court at Salem.
2. The said suit has been filed by the two sisters of the present
appellants seeking partition and separate possession claiming shares
in the properties which according to them were ancestral in nature
and to which they were entitled to equal share. Effectively the suit
was between the sisters against the brothers. The defendants had
filed a written statement in the said suit in which it was stated that
there was a panchayat and the Muchalika had been reduced in writing
and subsequently a registered partition deed had been entered
among the parties. That particular partition deed has been produced
as Ex.B.2 during the course of the trial. During the first appellate
proceedings, the panchayat Muchalika has been produced as
additional document under Order 41 Rule 27 CPC. The learned First
Appellate Judge did not give much credence to the said panchayat
Muchalika.
3. Pending the appeal, as is always case, owing to the long
pendency of litigation to nearly 10 years, the first appellant / one of
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the brothers had died, the second respondent / sister / one of the
plaintiff had also died and the second appellant / another brother /
second defendant had also died. This had necessitated filing of
Applications to condone the delay in filing the applications to set
aside the abatement, to set aside the abatement and to bring on
record the legal representatives as further appellants or further
respondents.
4. Both the Courts below had decreed the suit and have
recognized the right of the plaintiffs to seek partition and separate
possession and have specifically given a finding that the partition
deed projected by the respondent / appellants had not been put into
effect. It was also observed that the appellants had dealt with a
particular property and the learned Appellate Judge had taken
umbrage that they had not mentioned that in the written
statement.
5. Be that as it may, I can short circuit the pendency of this
appeal owing to abatement. Let me also observe that the respondent
/ plaintiff / legal representatives of the plaintiffs are at liberty to file
final decree application to put into effect the decree obtained in both
the Courts below and during such final decree application, the
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defendants therein may urge the principle of equity be applied that
the lands in their possession may be allotted to them. If it is found
that there is unequal distribution, they should come forward to
properly compensate the plaintiff and legal heirs of the plaintiff. This
is an issue which I am confident the trial Judge shall devote his mind
to and pass necessary orders if at all final decree application is filed.
6. With the above observations, the Second Appeal stands
dismissed not only on the issue of abatement and also as no
substantial question of law arises. No costs. Connected miscellaneous
petitions stand closed. The CRP is therefore infructuous and also
stands dismissed.
01.08.2022
Index:Yes/No
Internet:Yes/No
mrm
To
1.The I Additional District Munsif Court at Salem.
2.The II Additional Subordinate Judge, Salem.
3.The Section Officer, VR Section, Madras High Court.
https://www.mhc.tn.gov.in/judis
C.V.KARTHIKEYAN,J.
mrm
S.A.No.355 of 2012
01.08.2022
https://www.mhc.tn.gov.in/judis
