Marimuthu vs Athilakshmi (Deceased)
2022 Latest Caselaw 1080 Mad

                                                                                       S.A.No.762 of 2017


                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 24.01.2022

                                                         CORAM:

                                  THE HONOURABLE MR.JUSTICE M.GOVINDARAJ

                                                  S.A.No.762 of 2017


                1.Marimuthu

                2.Vijaya                                                           ... Appellants


                                                          Vs.

                1.Athilakshmi (deceased)

                2.Valliammal

                3.Sengazhani                                                      ... Respondents

                PRAYER: The Second Appeal has been filed under Section 100 of the Civil
                Procedure Code to set aside the decree and judgment in A.S.No.57 of 2011
                passed by the Additional District Judge, Chengalpattu dated 06.02.2016
                reversing the judgment and decree in O.S.No.68 of 2007 dated 16.08.2011 on the
                file of Additional Subordinate Judge, Chengalpattu.


                                        For Appellants            : Mr.K.V.Babu
                                        For Respondents           : Mr.G.S.Mohan


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https://www.mhc.tn.gov.in/judis
                                                                                        S.A.No.762 of 2017


                                                      JUDGMENT

Before the Second Appeal could be taken up final hearing, the learned

counsel appearing for both the sides would submit that after the death of their

mother Athilakshmi the 1st plaintiff herein, the 2nd plaintiff, defendants 1 and 3

were recognised as their legal heirs.

2. From the perusal of decree it is found that even though the 2nd

plaintiff, defendants 1 and 3 were recognised as legal heirs a preliminary decree

of partition was passed with respect to 1/4th share of the property instead of 1/3rd

share.

3. Aggrieved over the same, the 1st defendant preferred a Second

Appeal and the learned counsel for the respondents would also submit that they

filed a cross objection. However, it is not found in the records. All the parties

unanimously agree that the preliminary decree has been wrongly passed.

Accordingly, this Court is inclined to set aside the preliminary decree passed in

A.S.No. 57 of 2011 dated 06.02.2016 and remit the matter back to the First

Appellate Court for deciding the rights of the parties afresh.

https://www.mhc.tn.gov.in/judis S.A.No.762 of 2017

Registry is directed to return all the papers to the First Appellate Court.

Second Appeal is disposed of in the above terms. There shall be no order as to

costs.

24.01.2022.

Internet:Yes Index:Yes/No

Note: Issue order copy on 02.02.2022

To

1.The Additional District Judge, Chengalpattu

2.The Additional Subordinate Judge, Chengalpattu.

https://www.mhc.tn.gov.in/judis S.A.No.762 of 2017

M. GOVINDARAJ,

J.

kpr

S.A.No.762 of 2017

24.01.2022

https://www.mhc.tn.gov.in/judis S.A.No.762 of 2017

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