Madras High Court
Bhagavathi Perumal @ Varadhan vs Eswaran (Died) on 11 March, 2022
1 S.A.(MD)No.874 OF 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.03.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.874 of 2010
1. Bhagavathi Perumal @ Varadhan
2. Ashokan ... Appellants / Appellants /
Defendants 6 & 7
Vs.
1. Eswaran (Died)
2. Sabhapathy
3. Vaitheeswaran (Died)
4. Sivakami
5. Amaravathi
... Respondents 1 to 5 /
Respondents 1 to 5 /
Plaintiffs 1 to 5
6. Sumathi @ Sivakami Ammal
(R-6 is the LR of the deceased R-3. Memo was
recorded (Memo USR No.176/2015 dated 13.01.2015)
vide Order dated 09.09.2015.
7. Sureshkumari
8. Uma
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2 S.A.(MD)No.874 OF 2010
9. Parvathi ... Respondents 6 to 9 /
Respondents 6 to 9 /
Defendants 1,2,3 & 4
10. Lekshmi
11. Sundari
12. Meena
13. Usha
14. Shakila
15. Soundararajan ... Respondents 10 to 15 /
Respondents 10 to 15 /
Defendants 8,9,10,11,12 & 16
16. Shyamala
17. Hemalatha
18. Surendran
19. Sivakumar
(Respondents 6 to 10 and 12 to 17 were set
ex-parte before the lower Appellate Court. Hence,
notice is not necessary. They are given up)
... Respondents 16 to 19 /
Respondents 16 to 19 /
Defendants 17 to 20
20. Reena
21. Minor Mahalakshmi
(R-20 & R-21 were brought on record as LRs. of the
deceased R-1 vide Order dated 03.01.2020 in C.M.P.(MD)
No.9054, 9058 & 9061 of 2019)
Prayer: Second appeal filed under Section 100 of
C.P.C., to set aside the Decree and Judgment passed in
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3 S.A.(MD)No.874 OF 2010
A.S.No.54 of 2005 dated 29.01.2010 on the file of the District
Court, Kanyakumari at Nagercoil concurring the Judgment
and Decree passed in O.S.No.42 of 1996 dated 16.02.2005 on
the file of the I Additional Subordinate Judge, Nagercoil.
For Appellants : Mr.H.Thayumanaswamy
For R-2,R-4&R-5 : Mr.R.Murugan,
for Mr.S.Vashik Ali
For For R-6 & R-9 : Mr.A.C.Kannan
For R-11 : Mr.V.S.Karthi
For R-12,R-13,
R-20 &R-21 : No appearance.
***
JUDGMENT
Defendants 6 and 7 in O.S.No.42 of 1996 on the file of
the I Additional Sub Court, Nagercoil, are the appellants in
this second appeal.
2. The said suit was filed for partition. The case of the
plaintiffs is that the suit properties belonged to their father
Ramasubramonia Mudaliar. Ramasubramonia Mudaliar had
two wives, namely, Narmatha Devi and Sumathi @ Sivakami
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Ammal. The plaintiffs were born through the second wife. The
appellants herein and other children were born through the
first wife. In the partition suit, the first wife was the fifth
defendant, while the second wife / mother of the plaintiffs was
the first defendant. Based on the divergent pleadings, the trial
Court framed the necessary issues. The first plaintiff
examined himself as P.W.1. Ex.A.1 to Ex.A.11 were marked.
The first appellant herein examined himself as D.W.1 and one
Sundar was examined as D.W.2. An Advocate Commissioner
was appointed and his report was marked Ex.C.1. After
consideration of the evidence on record, the trial Court passed
preliminary decree on 16.02.2005 allotting equal shares to the
children born through the first wife as well as the second wife.
The appellants herein filed A.S.No.54 of 2005 before the
District Court, Kanyakumari at Nagercoil. The first Appellate
Court by the impugned judgment and decree dated
29.01.2010 confirmed the decision of the trial Court and
dismissed the appeal. The appellants herein filed I.A.No.93 of
2009 for adducing additional evidence and the first Appellate
Court dismissed the I.A. Challenging the same, this second
appeal came to be filed.
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3. The second appeal was admitted on 19.07.2016 on
the following substantial questions of law:-
“ (a) Whether the first Appellate Court is
right in decreeing the suit without analyzing the oral
and documentary evidence?
(b) Whether the Court below is right in
decreeing the suit without answering the issue No.1
is valid under law?
(c) Is the first Appellate Court is right in
dismissing the application for production of
additional evidence is correct under Order 41,
Rule 27 C.P.C.? ”
4. The learned counsel appearing for the appellants
reiterated all the contentions set out in the memorandum of
grounds and called upon this Court to answer the substantial
questions of law in favour of the appellants and set aside the
impugned judgment and decree passed by the first Appellate
Court and dismiss the suit.
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5. Per contra, the learned counsel appearing for the
contesting respondents submitted that the impugned
judgment and decree do not warrant any interference.
6. I carefully considered the rival contentions and
went through the evidence on record.
7. The basic facts are not in dispute. The appellants
did not claim any independent right in the suit property. They
are also tracing title only through their father
Ramasubramonia Mudaliar. There is no dispute that
Ramasubramonia Mudaliar had two wives. Before the Hindu
Marriage Act 1956, contracting second marriage even during
the subsistence of the first marriage was not illegal. Be that as
it may, during the pendency of the partition suit, the first wife
as well as the second wife passed away. The Courts below had
also treated all the children who were born through the first
wife and second wife equally. The impugned judgment and
decree passed by the first Appellate Court do not warrant any
interference. Of course, the learned
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counsel would complain that the petition for adducing
additional evidence should have been allowed. The appellants
only wanted to mark some notebook maintained by the sixth
defendant. I am more than convinced that even if the
additional evidence had been received, it would not be
relevant to decide the issue.
8. The substantial questions of law are answered
against the appellants. The impugned judgment and decree
passed by the first Appellate Court is confirmed. This second
appeal is dismissed.
9. The learned counsel appearing for the appellants
rightly pointed out that even though their mother was
admittedly the first wife and she has been so described in the
plaint itself, the Courts below have erroneously described her
as the second wife. I went through the plaint averments and I
found this contention to be correct. It is made clear that the
mother of the plaintiffs, namely, Sumathy @ Sivakami Ammal
was the second wife of Ramasubramonia Mudaliar, while the
mother of the appellants, namely, Narmatha Devi was his first
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wife. The Court record stands corrected accordingly. No costs.
11.03.2022
Index : Yes / No
Internet : Yes/ No
PMU
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:
1. The District Judge,
Kanyakumari at Nagercoil.
2. The I Additional Subordinate Judge,
Nagercoil.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.874 of 2010
11.03.2022
https://www.mhc.tn.gov.in/judis
