Madras High Court
Mahadevi (Died) vs N.Ramraj on 31 January, 2022
C.R.P.(MD)No.663 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(MD)No.663 of 2017
and
C.M.P(MD) No.3000 of 2017
1.Mahadevi (died)
2.A.Ganesh Babu ... Petitioners
(Memo dated 12.12.2021 (filed on 13.02.2021)
in USR No.28/162 is recorded as 1st petitioner
died and second petitioner and respondents 3 to 6
who are already on record, are recorded as LRs of
the deceased 1st petitioner vide Court order dated
17.12.2021 made in CRP(MD) No.663 of 2017)
-vs-
1.N.Ramraj
2.Sokkupapa
3.A.Usharani
4.A.Sujatha
5.A.Jeyam
6.A.Dhanapriya
7.M.Mayamani @ Senthilkumar ... Respondents
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C.R.P.(MD)No.663 of 2017
Prayer :- Petition filed under Article 227 of the Constitution of India, to
allow this civil revision petition thereby to set aside the fair order and
decreetal order dated 30.11.2016 made in I.A.No.511 of 2016 in O.S.No.
45 of 1984 on the file of learned Additional District Munsif,
Aruppukottai.
For Petitioner : Mr.T.Antony Arul Raj
For R1 : Mr.S.Parthasarathy
For R2, R4, R5 : No appearance
For R3, R6 & R7 : Dismissed.
ORDER
The respondent 5 and 10, who are the legal representative of the
second plaintiff, are before this Court challenging the order passed in IA
No.511 of 2016 in OS No.45 of 1984 on the file of the learned Additional
District Munsif, Aruppukottai.
2.The suit in O.S.No.45 of 1984 was filed by one Narayanasamy
Reddiyar and his son Azhagarsamy Reddiyar, the husband of the first
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C.R.P.(MD)No.663 of 2017
petitioner and the father of the second petitioner and the respondents 3 to
6 herein. The suit was filed against one Ramraj, the son of the first
plaintiff for partition of the 2/3rd share of the plaintiff to the suit schedule
property. The suit was decreed by judgment and decree dated
18.10.1985. Thereafter, the defendant had filed final decree proceedings
in I.A.No.370 of 2010, which is subsequently re-numbered as IA No.511
of 2016. The learned Additional District Munsif, Aruppukottai, by order,
dated 30.11.2016, was pleased to appoint an advocate commissioner to
divide the property by metes and bounds and grant 5/12 th share to the
petitioner. The reason for the enhanced share was on account of the fact
that the father Narayanasamy Reddiyar had died and the defendants
would be equally entitled to the 1/3rd share of the said Narayanasamy
Reddiyar along with the second plaintiff and the other respondents. This
order is challenged by the legal representatives of the second plaintiff on
the ground that the Court below had not taken note of the Will, Ex.R55
dated 21.02.1985, in and by which, the share of the first plaintiff's father
had been bequeathed to the second petitioner herein.
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C.R.P.(MD)No.663 of 2017
3.The revision petitioners would contend that the judgment and
decree in OS No.45 of 1984 was challenged before this Court in AS No.
104 of 1986 wherein the Will was brought to the notice of the Court and
the Division Bench of this Court had directed that the rights accruing to
Narayanasamy Reddiyar, the first plaintiff, had to be worked out in the
final decree proceedings. Despite such an order, the same has not been
considered by the learned Additional District Munsif, Aruppukottai.
Therefore, the order has to be set aside.
4.After hearing both the counsel, it was evident that the dispute
was only with reference to 1/3rd share of the first plaintiff, Narayanasamy
Reddiyar, as to whether the second plaintiff would be entitled to the
share of Narayanasamy Reddiyar by virtue of the Will marked as Ex.R55
or whether it has to be treated that the Narayanasamy Reddiyar had died
intestate and therefore, his 1/3rd, share had to be shared equally amongst
all these legal heirs, as a result of which, the first respondent herein
would be entitled to 5/12th share as held by the learned Additional
District Munsif, Arupukottai in the final decree. Therefore, a suggestion
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C.R.P.(MD)No.663 of 2017
has been made by this Court that the final decree proceedings would be
confirmed with reference to 1/3rd share of the defendants as well as the
legal representatives 1/3rd share each to the first respondent herein and
the legal representative of the second plaintiff and as regards, the 1/3rd
share of the first plaintiff Narayanasamy Reddiyar, the same shall be
remitted back to the learned Additional District Munsif, Aruppukottai for
fresh consideration on the basis of Ex.R.55, Will which has to be proved
by the revision petitioners herein in the manner known to law.
5.Both the counsel have agreed to this suggestion. Accordingly,
this Civil Revision Petition is partly allowed with a direction to the
advocate commissioner to measure and partition the properties by metes
and bounds and grant 1/3rd share to the first respondent. With reference
to the 1/3rd share of the father, IA No.511 of 2010 is remitted back to the
learned Additional District Munsif, Aruppukottai to be considered afresh
in the light of the will, Ex.R55, which shall be proved in the manner
known to law by the revision petitioner herein. The share of the first
plaintiff shall be thereafter re-worked, if the Will is found against the
petitioners herein.
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C.R.P.(MD)No.663 of 2017
6.With the above observations, this civil revision petition is partly
allowed. No costs. Consequently, connected miscellaneous petition is
closed.
31.01.2022
Index : Yes/No
Internet : Yes/No
cp
Note:-
In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the
order that is presented is the correct copy, shall be the
responsibility of the Advocate / litigant concerned.
To
TheAdditional District Munsif,
Aruppukottai.
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C.R.P.(MD)No.663 of 2017
P.T.ASHA, J.
cp
C.R.P.(MD)No.663 of 2017
and
C.M.P(MD) No.3000 of 2017
Dated: 31.01.2022
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https://www.mhc.tn.gov.in/judis
