Sumathi vs K.Saratha
2022 Latest Caselaw 3551 Mad

                                                                             SA.No.131/2022




                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 24.02.2022

                                                    CORAM:

                                    THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                        SA.No.131/2022 & CMP.No.2737/2022

                                                [Physical Hearing]

                    1.Sumathi
                    2.Jansi
                    3.Karthik                                               .. Appellants /
                                                                               Defendants

                                                       Vs.

                    K.Saratha                                               .. Respondents
                                                                              / 2nd Plaintiff


                    Prayer:- Second Appeal preferred under 100 of CPC against the judgment

                    and decree dated 21.01.2020 made in AS.No.31/2019 on the file of the

                    learned Principal District judge, Namakkal, confirming the judgment and

                    decree dated 05.04.2016 made in OS.No.228/2008 on the file of the

                    learned Sub Judge, Rasipuram.




https://www.mhc.tn.gov.in/judis                         1
                                                                                          SA.No.131/2022




                                         For Appellants              :   Ms.Zeenath Begum

                                         For Respondent              :   Mr.N.Subramaniyan


                                                          JUDGMENT

(1) The defendants in the suit in OS.No.228/2008 on the file of the

learned Subordinate Judge, Rasipuram, are the appellants in the

present Second Appeal.

(2) The mother of the 1st respondent filed the suit in OS.No.228/2008

for partition of her 1/12th share in all the suit properties against the

appellants who are wife and children of the plaintiff's son by name

Vivekanandan. The suit properties are stated to be the properties

allotted to Vivekanandan in a Partition Deed dated 20.01.2000.

The respondent herein is the sister-in-law of the 1st appellant. Late

Mr.Vivekanandan who is the husband of the 1st appellant is also

the son of the deceased plaintiff and the brother of the 2 nd

plaintiff/respondent herein. Appellants 2 and 3 are the children of

late Vivekanandan. It is admitted that during the pendency of the

suit, the plaintiff died and therefore, her daughter was impleaded as

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the 2nd plaintiff.

(3) The suit was contested by the appellants mainly on the ground that

the suit is bad for partial partition as the plaintiffs did not include

several movable properties which belonged to the late

Vivekanandan

(4) The suit was for partition of plaintiff's 1/2th share in all the suit

properties. It is admitted that the appellants are the wife and

children of late Vivekanandan. It is also admitted that the suit

properties are the properties allotted to late Vivekanandan in a

Partition Deed under Ex.A1 dated 20.01.2000. Since

Vivekanandan died intestate, the plaintiff and defendants are all

entitled to equal share in the 1/3rd share of Vivekanandan under

Section 8 of the Hindu Succession Act. It is admitted that the suit

properties are allotted to late Vivekanandan in the partition. The

plaintiff claimed only 1/12th share by treating the suit properties as

ancestral. Though ''C'' Schedule property was allotted to the

deceased mother/plaintiff, it is stated that the entire properties

allotted to the 1st plaintiff/mother was sold for discharging the

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mortgage loan obtained by late Vivekanandan.

(5) The suit was contested by the appellants mainly on the ground that

the suit is bad for partial partition as the plaintiffs did not include

several movable properties which belonged to the deceased

Vivekanandan. Referring to a few debts, it is contended that the

plaintiff is not entitled to seek partition without discharging the

loans obtained by the late Vivekanandan. After the death of the

1st plaintiff/mother, her daughter was impleaded as the 2nd

plaintiff. It is also stated that the 1st plaintiff had executed a Will

in favour of the 2nd plaintiff in respect of her undivided share in the

suit property. Therefore, the 2nd plaintiff got herself impleaded to

prosecute the suit.

(6) The Trial Court after framing necessary issues, found that the suit

properties are the properties allotted to the deceased Vivekanandan

and that the 1st plaintiff and defendants are entitled to equal share

in the 1/3rd share of Vivekanandan admitting the properties as

ancestral. As regards the issue whether the suit is bad for partial

partition, the Trial Court found that the defendants/appellants have

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not proved the existence of any other movable or immovable

properties and therefore, the contentions of the appellants cannot be

upheld. As regards the plea of Will, the Trial Court and the Lower

Appellate Court has concurrently held that the Will is proved in the

manner known to law. It is not in dispute that the attestors of the

Will are examined. The 1st plaintiff being the Class I heir, is

entitled to deal with her share even by executing the Will.

Therefore, this Court is able to see that the 2nd plaintiff is entitled

to succeed to the share of the 1st plaintiff in the suit for partition.

(7) The learned counsel for the respondent brought to the notice of this

Court that on the basis of the admitted facts, the

respondent/plaintiff is also entitled to 1/4th share. Unfortunately,

the counsel who drafted the plaint treated the whole properties

allotted to late Vivekanandan as ancestral properties. Since the

plaintiff' has restricted her claim to 1/12th share, this Court in the

Second Appeal filed by the appellants/defendants, cannot decide

the issue.

(8) The Trial Court as well as the Lower Appellate Court have given a

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specific finding that the debts alleged by the appellants/defendants

in the written statement are not proved to be outstanding. It is also

pointed out that some of the pronotes stated in the written

statement are time barred and no suit had been filed by anyone for

recovery of money.

(9) Having regard to the concurrent findings on fact on all the issues by

the Courts below, this Court is unable to find any substantial

question of law that arise in this appeal. The Courts below have

applied their mind independently and considered all the evidence,

both oral and documentary in the light of the pleadings.

(10) This Court finds no error or irregularity in the judgments and

decrees of the Courts below as contended by the learned counsel

for the appellants in the course of arguments.

(11) This Court finds no merit in the Second Appeal.

(12) Hence, this Second Appeal is dismissed confirming the judgment

and decree dated 21.01.2020 made in AS.No.31/2010 by the

learned Principal District Judge, Namakkal, confirming the

judgment and decree dated 05.04.2016 made in OS.No.228/2008

SA.No.131/2022

by the learned Subordinate Judge, Rasipuram. Considering the fact

that the parties are relatives, there will be no order as to cost.

Consequently, connected miscellaneous petition is closed.

24.02.2022 AP Internet : Yes

To

1.The Principal District Judge Namakkal.

2.The Sub Judge Rasipuram.

3.The Section Officer VR Section, High Court Chennai.

SA.No.131/2022

S.S.SUNDAR, J.,

AP

SA.No.131/2022

24.02.2022

https://www.mhc.tn.gov.in/judis 8