Saraswathy vs Ponnuthai
2022 Latest Caselaw 9638 Mad

                                                                              S.A(MD).No.598 of 2010

                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                    DATED: 08.06.2022

                                                        CORAM:

                                  THE HONOURABLE MR. JUSTICE N.SESHASAYEE

                                               S.A(MD).No.598 of 2010
                                                       and
                                                M.P(MD).No.2 of 2010


                     Saraswathy                             .... Appellant/Appellant/Defendant
                                                           Vs.

                     1.Ponnuthai
                     2.Irulayee
                     3.Amaravathy                           ... Respondents/Respondents/
                                                                                   Plaintiffs

                     Prayer :       Second Appeal is filed under Section 100 of Code of Civil
                     Procedure, to pass a decree and judgment in favour of the appellant by
                     setting aside the decree and judgment dated 17.08.2009 made in A.S.No.16
                     of 2008 on the file of the learned Principal District Judge, Virudhunagar at
                     Srivilliputhur, confirming the decree and judgment dated 02.01.2008 made
                     in O.S.No.24 of 2004 on the file of the learned Subordinate Judge,
                     Aruppukkottai and dismiss the suit with costs throughout.


                                    For Appellant      : Mr.S.Parthasarathy
                                    For R1 to R3       : Mr.S.Natarajan




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https://www.mhc.tn.gov.in/judis
                                                                                  S.A(MD).No.598 of 2010




                                                      JUDGMENT

A certain Ganapathy Thevar had left behind him surviving his four

daughters and left certain 19 items of properties for them to take. Three of

the daughters have filed a suit in O.S.No.24 of 2004 for partition against the

fourth daughter. The only defence taken by the defendant is that Ganapathy

Thevar, on 09.07.2001, Ganapathi Thevar had created a simple mortgage

Vide Ex.B-8 in favour of the husband of the defendant for Rs.2,00,000/-.

2. The matter went to trial and the trial Court passed a preliminary decree.

Vis-a-vis the contention of the defendant to include the liability on the

estate in the partition suit, the Court has held that the said aspect needs to be

worked out in a separate suit. Aggrieved by the same, the defendant has

preferred an appeal in A.S.No.16 of 2008, and the First Appellate Court

concurred with the trial Court and confirmed the decree passed by it. The

defendant is hence before this Court in this second appeal.

3. This appeal is admitted for considering the following substantial question

of law.

1.Whether it was incumbent on the part of the Courts below to have decided as to the respective liabilities of

https://www.mhc.tn.gov.in/judis S.A(MD).No.598 of 2010

parties to bear the burden of the mortgage debt (EX.B-8) on the suit properties?

2.Whether the Courts below ought to have drawn adverse inference against the plaintiffs for not having entered into the witness box, when the defendant had sufficiently pleaded and let in evidence to show the existence of the mortgage transaction binding the suit properties?

3.Whether the estate of the deceased includes the liabilities there on?

4. Heard both sides. Mr.S.Parthasarathy, the learned counsel for the

appellant, submitted that even during the pendency of the suit, the husband

of the defendant had filed a suit for recovery of mortgage money in O.S.No.

51 of 2008, in which, a preliminary decree has since come to be passed on

08.10.2020. He added that to his knowledge, no appeal has been filed

against it and the defendant's husband has taken out I.A.No.1 of 2021 for

passing a final decree.

5. The learned counsel for the respondents would interject to inform the

Court that an appeal has been preferred against the decree passed in O.S.No.

51 of 2008 before the Principal District Court, Srivilliputhur.

https://www.mhc.tn.gov.in/judis S.A(MD).No.598 of 2010

6. The turn of events as narrated before this Court indicate that the

defendant's husband has already taken recourse to realize the mortgage debt

due to him and this precisely is the line of action proposed by the Courts

below.

7. This Court, therefore, considers that there is nothing more remains to be

decided in this appeal and hence, this Second Appeal is dismissed. No

costs. Consequently, connected M.P(MD).No.2 of 2010 is closed.

08.06.2022

Index : Yes/No Internet: Yes/No rmk/cm

To

1.The Principal District Judge, Virudhunagar at Srivilliputhur.

2.The Subordinate Judge, Aruppukkottai.

3.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis S.A(MD).No.598 of 2010

https://www.mhc.tn.gov.in/judis S.A(MD).No.598 of 2010

N.SESHASAYEE, J.,

rmk/cm

S.A(MD).No.598 of 2010

08.06.2022

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