Madras High Court
Yamuna vs Rukumani on 15 September, 2022
1 CRP.(PD) No.4796 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.09.2022
CORAM:
THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI
C.R.P. (PD) No.4796 of 2017
and C.M.P. No.22567 of 2017
1. Yamuna
2. Minor Bharath .... Petitioners
Versus
1. Rukumani
2.Komala
3.Superintendent of Police,
Cuddalore District.
4.Superintendent of Police,
Thiruvallur.
5. Superintendent of Police,
Police Training Academy,
Vandalur, Thiruvallur District. ....Respondents
(Since the Respondents 3 to 5 were remained exparte in the Trial Court,
notice may be dispensed with for them)
Prayer:Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the fair and decreetal order dated
07.10.2017 made in I.A.No.120 of 2017 in O.S.No.122 of 2014 on the file
of II Additional District Judge, Chidambaram.
1/5
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2 CRP.(PD) No.4796 of 2017
For Petitioners : Mr.A. Muthukumar
For R1 & R2 : Mr.D. Baskar
For R3 to R5 : They were set exparte
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ORDER
This Civil Revision Petition has been filed by the petitioners
seeking to set aside the fair and decreetal order dated 07.10.2017 made in
I.A.No.120 of 2017 in O.S.No.122 of 2014 on the file of II Additional
District Judge, Chidambaram.
2.The petitioners herein are the defendants 1 and 2 and the
respondents herein are the plaintiffs 1 and 2 in the original suit who are
the mother and sister of the 1st defendant's husband.
3. For the sake of convenience, the parties are referred to as per the
rank cited in the suit.
4. The case of the petitioners is that the plaintiffs have filed the suit
in O.S. No.122 of 2014 on the file of the II Additional District Judge,
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Chidambaram, seeking for partition and separate possession in respect of
7/9th shares of plaintiffs/respondents herein in the suit property. During
pendency of the suit, the defendants 1 and 2 filed an Application in I.A.
No.120 of 2017 in O.S. No.122 of 2014 seeking to implead the LIC
amount as well as 30 sovereigns of gold jewels in the plaint as B Schedule
property. The Court below after considering both side submissions,
dismissed the I.A. No.120 of 2017 by its order dated 07.10.2017 holding
that there is no necessity to show the aforesaid items as property in the
plaint schedule property. Being aggrieved by the aforesaid order, the
present Civil Revision Petition has been filed by the defendants 1 and 2
seeking to set aside the same.
5.The learned counsel for the petitioners submitted that the 1st
defendant's husband died due to illness who had taken LIC Policy for Rs.2
Lakhs under Policy No.734011633 and the 1st plaintiff who is mother of
the deceased, received the said amount without giving any share to the 1st
defendant/wife of the deceased. Hence, the same is also available for
partition as estate of the deceased. Further, 30 Sovereigns of Gold Jewels
has been given at the time of marriage. Those Jewels are in the custody of
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the 1st plaintiff. The 1st plaintiff had purposely left these items from
including in the schedule of property to the plaint. Hence, the defendants 1
and 2 have filed the I.A.No.120 of 2017 to implead the same in the suit
schedule property. However, the Trial Court failed to follow the well
settled law that the defendants in a suit for partition can maintain a
petition for amendment of plaint for inclusion of the left out properties and
therefore, the order of the Court below is liable to be set aside. In support
of his argument, the learned counsel for the petitioners has relied on the
the Judgment in the case of "A.A. Ganga and Another Vs. A.R. Usha and
Others" reported in (2010) 6 MLJ 537 passed by the Madurai Bench of
this Court.
6. Per contra, the learned counsel for the respondents submitted that
the maturity amount upon LIC policy was used to discharge the loans
obtained for the treatment of the deceased. Further, No jewels belonging to
the 1st defendant is with the 1st plaintiff. While being so, amendment of
plaint for inclusion of the aforesaid items is not sustainable. Hence, the
Trial Court has rightly dismissed the I.A. No.120 of 2017 filed by the
defendants 1 and 2 after considering facts and circumstances of the case.
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thereby, the Civil Revision petition is liable to be dismissed.
7. Heard the learned counsel for both parties and perused the
materials available on record.
8. Having considered the facts and circumstances of the case and
submissions made by the learned counsel for both parties, it is learnt that
the plaintiffs filed the suit seeking for partition in O.S. No.122 of 2014 on
the file of the II Additional District Munsif, Chidambaram. The defendants
1 and 2 in the suit filed an Application in I.A. No.120 of 2017 seeking to
include the LIC Policy amount and the 30 Sovereign of gold jewels given
on the marriage occasion, in the suit schedule property. In a suit for
partition, all the properties are to be partitioned including the LIC Policy
amount and Jewels and other items. Only amendment can be allowed for
including the LIC Policy and Gold Jewels, the suit would be decided on
merit after proper trial. Otherwise, there is a possibility to lead to the
multiplicity of proceedings. By including the aforesaid items in the suit
schedule property, it would not affect the right of the plaintiffs in any way
and further, they can raise any issue in this regard at the time of the Trial.
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9. In view of the above, the order of the Court below is liable to be
set aside and the LIC Policy amount and 30 Sovereigns of Gold Jewels
are ordered to be included in the suit schedule property for effective
adjudication of the suit and considering the aforesaid items, the issues
shall be framed accordingly and since the suit is of the year 2014, it is
directed to be decided as expeditiously as possible.
10. In the result, the Civil Revision Petition is allowed.
Consequently, connected miscellaneous petition is closed if any. No costs.
15.09.2022
Lbm
Index : Yes/No
Speaking Order : Yes/No
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To:
1. The II Additional District Judge,
Chidambaram.
2. The Section Officer,
V.R.Section
High Court, Madras.
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T.V.THAMILSELVI, J.
Lbm
C.R.P. (PD) No.4796 of 2017
and C.M.P. No.22567 of 2017
15.09.2022
https://www.mhc.tn.gov.in/judis
