Madras High Court
Sumathi vs T.M.Palani on 23 June, 2022
SA.No.344/2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 23.06.2022
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
SA.No.344/2011 & CMP.No.2174/2022
Sumathi ... Appellant
/ Plaintiff
Versus
1.T.M.Palani
2.T.P.Mohan
3.Susila
4.N.Nagalakshmi
5.S.Radhamani .. Respondents /
Defendants
***RR4&5 impleaded vide order dated 22.01.2018
made in MP.No.1/2012 in SA.No.344/2011
Prayer : - Second Appeal filed under Section 100 of CPC., against the
decree and judgment dated 10.11.2010 in AS.No.20/2010 on the file of the
learned Principal District Judge, Erode, confirming the decree and judgment
dated 30.11.2009 in OS.No.101/2007 on the file of the learned I Additional
Subordinate Judge, Gobichettipalayam.
For Appellant : Mr.S.S.Ragavan for
1
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SA.No.344/2011
Mr.R.Subramanian
R1 : Died
For RR 2 & 3 : Mr.S.Kaithamalai Kumaran
For RR4&5 : No appearance
JUDGMENT
(1) The present Second Appeal is preferred against the judgment and
decree of the learned Principal District Judge, Erode, dated
10.11.2010 in AS.No.20/2010 confirming the judgment and decree of
the learned I Additional Subordinate Judge, Gobichettipalayam, dated
30.11.2009 in OS.No.101/2007.
(2) The suit was filed by a daughter against her father/1st respondent and
her brother and sisters/other respondents. The suit had been
dismissed by the Trial Court and the First Appeal filed by her before
the First Appellate Court also suffered a judgment of dismissal.
(3) There were many items of properties in the suit schedule given to the
plaint and the contention of the 1st respondent/father was that the
properties are self-acquired properties having been bequeathed to him
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SA.No.344/2011
under a Will and that therefore, they are not ancestral in nature.
Naturally, when the father is alive, there cannot be any partition of his
properties which he claims to be self-acquired.
(4) Before the First Appellate Court, the appellant herein had also filed an
application under Order 41 Rule 27 of CPC seeking to produce
additional documents to establish the fact that properties are ancestral
in nature. Though opportunity was given, counter was not filed by
the present respondents to that particular application.
(5) Both the Courts below held that the properties can be categorised only
as self-acquired properties of the 1st respondent/father and that,
partition had not opened since he was alive and dismissed the suit.
(6) The Second Appeal has not been admitted.
(7) Now the situation has changed. The 1st respondent/father has died. In
his written statement, he has very categorically stated that the
properties are his self-acquired properties. If that be so, on the death
of the father, the self-acquired properties will have to devolve in
accordance with the Succession Act and all the Class I heirs would be
entitled to a share. The appellant as a daughter, is automatically
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SA.No.344/2011
entitled to a share.
(8) The said share will have to be worked out only before the Trial Court.
The entire scope of the litigation now changes and both the decrees
and judgments of the Courts below which were rendered are on the
basis that the properties were self-acquired properties of the 1st
respondent/father and therefore, the daughter cannot seek partition
since the father was alive, have to be interfered with, since the
father/1st respondent has died and the appellant is entitled to a share.
(9) The judgment and decree of the Trial Court, namely, the I Additional
Subordinate Court, Gobichettipalayam dated 30.11.2009 in
OS.No.101/2007 as well as the judgment and decree dated
10.11.2010 in AS.No.20/2010 on the file of the learned Principal
District Judge, Erode, are set aside and the matter is remanded back to
the Trial Court to now work out the shares which would fall to the
share of the appellant herein/plaintiff in view of the fact that in the
written statement, the 1st respondent/father had specifically stated
that the properties are self-acquired properties and as the daughter of
the 1st respondent, the appellant herein is automatically entitled to a
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SA.No.344/2011
share in the properties. Let the Trial Court, therefore, re-examine the
entire issue on this new turn on events and work out the preliminary
decree which has to be granted or rather, a share which has been
granted to the appellant herein.
(10) The learned counsel for the appellant while filing applications to bring
on record the legal representatives of the deceased 1st respondent, had
brought on record the brother and sisters ; but omitted to bring on
record the mother as a party to the Second Appeal. An application
had been filed and the endorsement shows that it was dismissed as
not pressed. It is represented that however another application has
been filed to recall that particular order. Let me not enter into a
discussion on all those aspects, but rather leave it to the privilege of
the Trial Court to now re-examine the parties to the litigation and take
note of the fact that the 1st defendant in the suit is dead and call upon
the plaintiff to file necessary application to bring on record the legal
representatives of the deceased 1st defendant and also take note of the
fact that some of the properties had been dealt with by the defendants
and also if applications are filed, implead the subsequent purchasers
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SA.No.344/2011
and in the presence of all the parties including the subsequent
purchasers, work out the preliminary decree and in the final decree
application, work out the equity according to which the shares must
be allotted to each member of the family of the 1st defendant / father.
(11) Therefore, the judgments and decrees of the Trial Court as well as the
First Appellate Court are set aside and the matter is remanded back to
the Trial Court, namely, the learned I Additional Subordinate Court,
Gobichettipalayam, for fresh disposal of OS.No.101/2007 in
accordance with law in view of the fact that 1st respondent/father had
now died and had very specifically claimed that properties are his self-
acquired properties.
(12) In the result, the Second Appeal is allowed. No costs. Consequently,
connected miscellaneous petition is closed.
23.06.2022
AP
Internet : Yes
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SA.No.344/2011
To
1.The Principal District Judge
Erode.
2.The I Additional Subordinate Judge
Gobichettipalayam.
3.The Section Officer
VR Section, High Court
Chennai.
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SA.No.344/2011
C.V.KARTHIKEYAN, J.,
AP
SA.No.344/2011
23.06.2022
https://www.mhc.tn.gov.in/judis
