Vasantha vs Palaniyammal
2023 Latest Caselaw 10564 Mad

                                                                                S.A.No.1606 of 2000

                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                    Dated : 17.08.2023

                                                         CORAM

                              THE HON'BLE MR.JUSTICE KRISHNAN RAMASAMY

                                                    S.A.No.1606 of 2000
                                                            and
                                                  C.M.P.No.16276 of 2002

                     Vasantha
                                                                                      ... Appellant

                                                           -vs-

                     1.Palaniyammal
                     2.Palanimuthu
                     3.Duraipandi
                     4.Palaniswami
                     (R4 is declared as major and guardianship is
                     discharged vide Court order dated 10.07.2018
                     made in CMP(MD)No.5816 of 2017)
                                                                                   ... Respondents

                     PRAYER: Second Appeal filed under Section 100 Code of Civil
                     Procedure against the Judgment and Decree dated 04.08.1998 made in
                     A.S.No.23 of 1998 on the file of the II Additional District Judge,
                     Tiruchirappalli reversing the Judgment and Decree dated 25.11.1994
                     made in O.S.No.121 of 1986 on the file of the District Munsif, Turaiyur.

                                  For Appellant          ... Mr.T.M.Hariharan




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                                                                                   S.A.No.1606 of 2000




                                                           JUDGMENT

The appellant is the fifth defendant, who is the purchaser. The

appellant/fifth defendant has purchased the property from the second

respondent/first defendant, who is the husband of the first

respondent/plaintiff.

2.The first respondent/plaintiff has filed the suit in O.S.No.121 of

1986 on the file of the District Munsif, Thuraiyur, seeking the relief for

division of suit property as two shares and handover the possession in

respect of one share and for interim maintenance. In the said suit, the

first respondent/plaintiff alleged that she is the first wife of the second

respondent/first defendant. Out of the wedlock, one Palanisamy was

born. After 20 years, the said Palanisamy, died. Thereafter, she filed

the suit. After full-fledged trial, the trial Court dismissed the suit.

Challenging the said Judgment and Decree, the first respondent/plaintiff

has filed the appeal in A.S.No.23 of 1998 on the file of the Second

Additional District Judge, Trichy. After hearing, the first appellate Court

allowed the appeal and set aside the Judgment and Decree passed by the

trial Court. The first appellate Court came to the conclusion that the first

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S.A.No.1606 of 2000

respondent/plaintiff is entitled to 1/2 share in the suit schedule property.

Aggrieved over the same, the appellant/fifth defendant/purchaser, has

filed the present second appeal before this Court raising the following

substantial questions of law:-

“1) Whether the burden is not on the first respondent to show that Palaniswami was born through her wedlock with the 2nd respondent and whether the reversal of the finding of the trial Court in this regard is legal and proper?

2) Whether the burden is not on the 1st respondent to show that the alienations will not bind her and whether the reasoning and findings of the appellate Court to the contra is legally sustainable?

3) Whether the suit is not bad for non-joinder of the brother of the 2nd respondent, admittedly, having a share in the family house?

4) Whether when the appeal is dismissed against the 2nd defendant, whether the appeal as a whole does not abate in the instant case?”

3.However, this Court, after considering the facts and

circumstances, while admitting the second appeal, has formulated the

following substantial questions of law:

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S.A.No.1606 of 2000

“1) Whether the burden is not on the first respondent to show that Palaniswami was born through her wedlock with the 2nd respondent and whether the reversal of the finding of the trial Court in this regard is legal and proper?

2) Whether the suit is not bad for non-joinder of the brother of the 2nd respondent, admittedly, having a share in the family house?

4. In this case, notice sent, has been served on the third respondent

and his name is also printed in the cause list, however, no one appeared

on his behalf. Notice sent to the respondents 1 and 2 were returned with

an endorsement 'died' and no steps have been taken to bring the legal

heirs of the deceased respondents 1 and 2. Hence, on 25.04.2023, this

Court dismissed this second appeal as against the respondents 1 and 2.

Service is awaited for the fourth respondent. However, it is stated by the

learned counsel for the appellant/fifth defendant that the fourth

respondent is mentally affected.

5.The learned counsel for the appellant/fifth defendant would

submit that the first appellate Court passed the Judgment and Decree

stating that the first respondent/plaintiff is entitled 50% of the share. The

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S.A.No.1606 of 2000

appellant/fifth defendant purchased only 86 cents situated in S.No.91/2 at

Kollampatti village, Thuraiyur Taluk, which is mentioned in the third

schedule, from the second respondent/first defendant/husband, prior to

the filing of the suit, by way of sale deed dated 02.02.1976, which was

marked as Ex.A6. Besides, the lands to an extent of 69 cents in S.No.

153/1 and to an extent of 63 cents in S.No.153/2 and to an extent of 95

cents in S.No.66/15 and a house bearing Door No.1/63 in S.No.151/1 are

in Schedule Nos.1, 2 and 4. Hence, the learned counsel requested this

Court in the final decree proceedings, the above said 86 cents mentioned

in III Schedule, may be allotted to the second respondent/first

defendant/husband, so that the interest of the appellant/fifth defendant

would be protected.

6.In view of the above fact, this Court feels that there is no

necessity to answer the substantial questions of law framed by this Court.

Accordingly, considering the request of the learned counsel for the

appellant/fifth defendant, this Court directs the Court below, who deals

with the final decree proceeding in this matter, to take into consideration

the request of the appellant/fifth defendant/purchaser and allot the said

86 cents to the second respondent/first defendant/husband to safeguard

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S.A.No.1606 of 2000

the interest of the appellant/fifth defendant, when the final decree

application is filed.

7. With the above direction, this Second Appeal is disposed of.

No costs. Consequently, connected miscellaneous petition is closed.

17.08.2023 NCC : Yes/No Index : Yes/No Internet: Yes skn

To:

1.The II Additional District Judge, Tiruchirappalli.

2.The District Munsif, Turaiyur.

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

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

S.A.No.1606 of 2000

KRISHNAN RAMASAMY, J.

skn

S.A.No.1606 of 2000 and C.M.P.No.16276 of 2002

17.08.2023

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