Madras High Court
Shanmugam (Died) vs Palaniyandi on 9 March, 2023
S.A.No.439 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.03.2023
CORAM
THE HONOURABLE Mr. JUSTICE V. LAKSHMINARAYANAN
S.A.No.439 of 2009
1.Shanmugam (died)
2.Krishnamurthy (died)
3.Perumal
4.Anjala Devi,
W/o.Krishnamurthy
5.S.Sathiya,
D/O.Krishnamurthy
6.S.Raji,
D/o.Krishnamurthy ...Appellant/Appellant/Plaintiff
(2nd and 3rd appellants are brought on record as legal representatives
of the deceased sole appellant vide Order of this Court dated
05.01.2009 in C.M.P.No.2760 and 2761 of 2007)
-vs-
1.Palaniyandi
2.Kaliayamoorthy
3.Ramamurthy
4.Venkatesan
1/6
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S.A.No.439 of 2009
5. Minor Karthikeyan,
Guardian of Kannan
6.Elumalai (died) ...Respondents/Respondents/Defendants
(Substitution of R6 by his legal representatives is disposed with.
Memo recorded vide order of this Court dated 07.03.2023 made in
S.A.No.439 of 2009)
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 17.09.2003 in
A.S.No.90 of 2001 on the file of the learned II Additional Subordinate
Judge, Villupuram, confirming the Judgment and Decree dated
23.03.2001 in O.S.No.569 of 1990 on the file of the learned II
Additional District Munsif, Tirukoilur.
For Appellants : Mr.N. Suresh
For Respondents : Mr.T.S.Baskaran
for R1, R2 and R4
JUDGMENT
The grandfather of the appellant by name one Shanmugham filed
a suit O.S.No.1569 of 1990 against his brother Palaniyandi and other
sharers. The relief sought in the suit is for partition and separate
possession. The suit was dismissed on the ground that the properties
were already partitioned and the second suit for partition is not
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S.A.No.439 of 2009
maintainable. Consequently, the suit was dismissed.
2.When the appeal was taken up for hearing, Mr.T.S Baskaran,
learned counsel appearing for the respondents 1, 2 and 4 filed a Memo
to the following effect:
"As per the Partition list dated 28.11.1974, the
suit items were partitioned in the following manner:
(1)Suit Item - 1: Survey No.114/10 (Total extent 1.50
acres). As per the Partition list, plaintiff and the 1st
defendant were each allotted 75 cents.
(2)Suit Item - 2: Was alloted to plaintiff Shanmuagam.
(3)Suit Item - 3: Was allotted to the 1st defendant
Palaniyandi.
In respect of Suit Item - 4, the same is the
individual property of the 2nd defendant
Kaliayamoorthy.
Pending the Second Appeal, the appellants Anjali
(wife of Krishnamoorthy, viz., Son of Shanmugam) and
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S.A.No.439 of 2009
Perumal (Son of Shanmugam) had executed a Release
Deed dated 07.10.2013 by releasing their half share in
Suit item-1, in favour of the 2nd defendant
Kaliayamoorthy. Thus, the 2nd defendant, by virtue of
the Release Deed dated 07.10.2013 had become the
absolute owner of the suit Item -1."
3.On perusal of the same shows that pending the appeal insofar
as Item - 1 of the properties is concerned, the legal heirs of the plaintiff
have executed a Release Deed in favour of Kaliayamoorthy, who had
already been granted half-a-share in the partition list. In fine, today the
said Kaliayamoorthy has become the owner of the suit Item - 1 of the
property.
4.The learned counsel appearing for the appellants states that his
clients have not contacted him but he has no objection for recording the
Memo.
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S.A.No.439 of 2009
5.The said Memo is recorded. The partition list between
Kaliayamoorthy and the legal heirs of Krishnamoorthy do not exist any
more in the light of the execution of the Release Deed dated
07.10.2013. Hence, this Second Appeal is dismissed as infructuous.
No costs.
09.03.2023
Index : Yes/No
Internet : Yes/No
Speaking order / Non speaking order
mps
To
1.The II Additional Subordinate Judge,
Villupuram.
2.The II Additional District Munsif,
Tirukoilur.
https://www.mhc.tn.gov.in/judis
S.A.No.439 of 2009
V. LAKSHMINARAYANAN, J,
mps
S.A.No.439 of 2009
09.03.2023
https://www.mhc.tn.gov.in/judis
