Madras High Court
M.Ganthiyammal vs K.Periyampillai on 28 February, 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 28.02.2022
CORAM
THE HONOURABLE MS. JUSTICE R.N.MANJULA
A.S(MD).No.105 of 2017
and C.M.P(MD).Nos.6213 and 6214 of 2017
1.M.Ganthiyammal
2.S.Sasikala
3.P.Devi .. Appellants/Plaintiffs
Vs.
1.K.Periyampillai
2.K.Samuthiram @ Murugesan
3.M.Karuppaiah
4.Pandiyammal
5.G.Kaleeswari .. Respondents/Defendants
Prayer : This Appeal Suit is filed under Section 96 of the Civil
Procedure Code, against the judgment and decree passed in O.S.No.136
of 2013 dated 31.01.2017 on the file of the I Additional District Court,
Madurai.
1/10
https://www.mhc.tn.gov.in/judis
For Appellants : Mr.M.Thirunavukkarasu
For Respondents : Mr.A.R.Kannappan
for Mr.A.Gopal for R4 to R5
No appearance for R1 to R3
JUDGMENT
This Appeal Suit is preferred against the judgment and decree in
O.S.No.136 of 2013 dated 31.01.2017 passed by the I Additional District
Court, Madurai.
2. The appellants are the plaintiffs before the trial Court. The
appellants/plaintiffs have filed a suit for partition of the 3/12th share in
the suit properties and to declare the partition deed dated 27.09.2011
entered into between the defendants 1 to 3 as null and void and to declare
the preliminary decree obtained by the defendants 4 and 5 against the
defendants 1 and 2 in O.S.No.553 of 2010 also null and void. The suit
has been filed on the basis that the suit properties originally belonged to
one Late Maaranadu and the defendants 1 to 3 as Hindu joint family
properties. The first plaintiff is the wife and the second plaintiff is the
daughter of the late Maaranadu and the third defendant is the son of the
Late Maaranadu, the defendants 1 and 2 are brothers of late Maaranadu
and defendants 4 and 5 are third parties.
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3. Maaranadu died on 01.02.2002 leaving behind his wife and children as
his legal heirs. Since Maaranadu died before partition, his share in the
suit properties would devolve upon his son/third defendant and the
plaintiffs. The plaintiffs would have 3/4th share in the share of
Maaranadu and that would come to 4/12th share in the entire suit
properties. Despite the plaintiffs' repeated request for partition and
separate possession of their shares, the defendants 1 to 3 did not come
forward to effect the partition, but, however, they colluded between
themselves and entered into a partition deed among themselves on
22.09.2011 and that is not valid. The fourth defendant alleged herself as
the wife of the deceased Maaranadu and fifth defendant as his daughter
and had filed a suit in O.S.No.553 of 2010 against the defendants 1 and 2
and got an ex-parte decree. Despite the plaintiffs and third defendant
were the necessary parties to that suit, they were not impleaded. Hence,
the plaintiffs have filed a suit for partition and separate possession of
their 3/12th share in the suit properties; the defendants were set ex-parte
because of their non-appearance.
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4. The first plaintiff examined himself as P.W.1 and produced the
documents Ex.A1 to Ex.A12. The learned trial Judge after examining the
evidence available on record dismissed the suit. Aggrieved by that, the
plaintiffs have preferred this appeal.
5. The learned counsel for the appellants submitted that the first plaintiff
is the legally wedded wife of Maaranadu and the plaintiffs 2 and 3 and
the third defendant are the children born to Maaranadu through the first
plaintiff; Ex.A7 - Partition deed itself would show that the parents of the
deceased Maaranadu had only 3 sons, who executed the partition deed
dated 27.11.2009 (Ex.A7). Despite the defendants did not make their
appearance, the learned trial Judge proceeded to dismiss the suit on some
wrong findings; hence, the plaintiffs have preferred this appeal
challenging the judgment of the trial Court.
6. The learned counsel for the respondents submitted that the fourth
defendant is the wife of the deceased Maaranadu and the fifth defendant
is the daughter of Maranadu. The fourth defendant - wife of Maaranadu
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has filed a suit for partition and got a decree in her favour in respect of
the suit property. Some of the properties have not been included in the
suit for partition and hence, the suit is hit by partial partition. The learned
trial judge has rightly appreciated the evidence available on record and
chosen to dismiss the suit, despite the defendants remained ex-parte.
7. On the basis of the above pleadings, the following points for
consideration should be framed for the disposal of this appeal:-
(i) Whether the plaintiffs are the legal heirs of Maaranadu; and
(ii) Whether the dismissal of the suit has laid by fair and proper?
8. The relationship between the plaintiffs and the third defendant was not
denied. It is also not disputed that the suit properties were originally
belonged to the parents of one Maaranadu and the deceased Maaranadu.
The defendants 1 and 2 were the sons of deceased Karuppaiah and it is
claimed by the respondents that the first plaintiff is in no way related to
the deceased Maaranadu and the fourth defendant alone is the legally
wedded wife of Maaranadu. The brothers of deceased Maaranadu
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themselves have acknowledged that the third defendant is the son of
Maaranadu; Maaranadu had predeceased his parents. There is no quarrel
over the character of the suit properties that they are the ancestral
properties of the deceased Maaranadu.
9. The partition deed - Ex.A7 would show that Maaranadu and his two
brothers alone are the legal heirs of their father, namely, Karuppaiah.
Maaranadu was not alive at the time of Ex.A7 partition deed. His son –
third defendant was included as a party to the partition. So that, the third
defendant was accepted as the son of Late Maaranadu, by his brothers.
The fact remains that the third defendant was born through the first
plaintiff. However, the fourth defendant also claims that she is the legally
wedded wife of late Maaranadu. These facts could have better agitated
and proved before the Court, if the defendants made their appearance and
contested the suit. Though the defendants have not appeared before the
trial Court, they have appeared before this Court and made their
submissions.
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10. It seems many contentious issues have to be analysed and resolved.
Hence, it is appropriate to remand the suit to the trial Court for fresh
disposal. In that event, the defendants 1 to 5 would get the liberty to file
their written statement. In the interest of justice the plaintiff should also
be permitted to amend the plaint schedule properties for including the
entire properties involved in Ex.A7 partition deed in order to avoid the
risk of partial partition. In the other suit filed by the defendants 4 and 5
against the defendants 1 and 2, the issue raised now could not have been
adjudicated because the plaintiffs as they were not parties to the said suit.
11. The appellants/plaintiffs have also sought their relief to declare the
decree obtained by the defendants 4 and 5 in O.S.No.553 of 2010 as
null and void. Hence, the opportunity should be given to all the parties
concerned to agitate before the trial Court by filing their respective
pleadings. So, in the interest of the justice, I feel that the suit should be
remanded to the trial Court with the above directions.
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12. In the result, the judgment and decree made in O.S.No.136 of 2013
dated 31.01.2017 is set aside and the suit is remanded to the trial Court
for fresh disposal. The learned trial judge shall grant an opportunity to
the defendants to file written statement and the plaintiffs to file
amendment petition to include the entire properties for partition. The
learned trial Judge is directed to dispose of the suit as early as possible.
No Costs. Consequently, the connected miscellaneous petitions are
closed.
28.02.2022
Index : Yes/No
Internet : Yes/No
tta
To
1. I Additional District Court,
Madurai.
2.The Section Office,
https://www.mhc.tn.gov.in/judis
VR Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
R.N.MANJULA, J.
tta
A.S(MD).No.105 of 2017
28.02.2022
https://www.mhc.tn.gov.in/judis
