Madras High Court

P.Gurusamy vs Nagammal on 2 January, 2024

                                                                            S.A.No.1123 of 2013



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED : 02.01.2024

                                                   CORAM

                        THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN

                                              S.A.No.1123 of 2013
                                                      and
                                                M.P.No.1 of 2013

                     P.Gurusamy                   ... Appellant/Appellant/Defendant no.1

                                                     Vs.

                     1.Nagammal

                     2.Velusamy

                     3.Prakash

                     4.Gomathy

                     5.Parameswari

                     6.Srikaladevi                ... Respondents/Respondents/Plaintiffs


                     Prayer: Second Appeal filed under Section 100 of the Code of Civil
                     Procedure against the Judgment and decree of the learned Principal
                     Subordinate Judge, Tirupur, dated 24.11.2012 made in A.S.No.45
                     of 2010 confirming that of the District Munsif, Tirupur, dated
                     27.08.2010 made in O.S.No.70 of 2008.

https://www.mhc.tn.gov.in/judis
                     Page No 1 of 9
                                                                                      S.A.No.1123 of 2013



                                       For Appellant       : Mr.P.Manish for
                                                             Mr.I.Abrar Mohammed Abdullah

                                       For Respondents     :Ms.T.R.Gayathri for
                                                            M/S.Sarvabhauman Associates.

                                                      JUDGMENT

This is an appeal which arises against a suit for partition in

O.S.No.70 of 2008 on the file of District Munsif, Tirupur, filed by the

daughters and legal heirs of a pre-deceased daughter of one Ponnusamy.

The defendants 1 to 3 are the sons of Ponnusamy. The relationship

between the parties is not in dispute.

2. It is the case of the plaintiff that the property was purchased

by Ponnusamy in the year 1966. He had been in possession and

enjoyment of the property for nearly four decades and he passed away on

26.11.2000. The plaintiffs and the defendant, being the legal heirs, are

entitled to succeed to the estate. The first defendant is in possession and

enjoyment of the property. On the death of the said Ponnusamy, the

plaintiffs and the defendant became entitled to the property equally.

Hence, the suit.

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3. The first defendant resisted the suit on the ground that the

deceased Ponnusamy had executed a Will on 14.09.1994 in favour of his

wife Banumathi and two children namely, Prathiba and Vignesh.

4. Before the trial Court, the first plaintiff Nagammal examined

herself and marked Ex.A1 to Ex.A8. The first defendant Gurusamy

examined himself and marked no document.

5. The trial Court came to the conclusion that Ponnusamy,

having left behind 7 children, each of his legal heirs are entitled to 1/7th

share. The plaintiffs 1, 5 & 6 are entitled to 1/7th share and plaintiffs 2, 3

& 4, being the legal heirs of the pre-deceased daughter Deivanai, are

jointly entitled to 1/7th share. This was taken on appeal before the

appellate Court in A.S.No.45 of 2010. The learned Principal Subordinate

Judge, Tirupur, by way of judgment dated 24.11.2012, was pleased to

confirm the same. Against the concurrent findings, the present second

appeal has been presented.

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6. The learned counsel for the appellant submitted that on

18.11.2013, this Court had ordered notice of admission and had granted

interim order on all further proceedings in the final decree.

7. The learned counsel for the appellant mainly contended

i) that the second appeal has to be allowed on the ground of non-

joinder of necessary parties namely Ponnusamy's wife Banumathi and his

children Prathiba and Vignesh.

ii) He would urge that as the elder brother, he had spent money

towards the marriage of his sisters and they are not entitled to claim any

share. He also suggested following the substantial questions of law:

a) Whether the Lower Appellate Court was right in not considering all the aspects with respect to a suit for partition despite the specific stand of the appellant that he had spent for the marriage expenses of the plaintiff?

b) Whether the Lower Appellate Court was right in not considering the aspect of non-joinder of parties inspite of the specific plea taken by the appellant?

c) Whether the Lower Appellate Court was right in confirming the judgment of the Trial court without assigning any reasons for agreeing with the findings of the Trial Court?

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8. Per contra, Ms.T.R.Gayathri, the learned counsel appearing

for the respondents submits that the first defendant had not marked any

documents in order to substantiate this case and mere ipsi dixit of the

defendant regarding the “Will” is insufficient for the parties seeking to

dismissal of the suit.

9. Heard Mr.P.Manish, the learned counsel appearing for the

appellant and Ms.T.R.Gayathri, the learned counsel appearing for the

respondents and have carefully gone through the records.

10. It is admitted by both sides that the properties belong to

Ponnusamy and that he died leaving behind the plaintiffs and the

defendants as legal heirs. As the 3 rd daughter Deivanai had pre-deceased

him, her legal heirs, namely Velusamy, Prakash and Gomathy, have been

impleaded as plaintiffs to the suit. Therefore, all the proper and necessary

parties in the suit for partition had been brought on record.

11. Insofar as the alleged right of the wife and children of the

first defendant are concerned, no steps had been taken by them to get

themselves impleaded in the suit nor the first defendant had taken any https://www.mhc.tn.gov.in/judis Page No 5 of 9

step to produce the alleged Will before the Court. The Court can hold

that the proper and necessary parties are before it, if and only if, prima

facie some proof is let in for the same.

12. As rightly pointed out by the learned counsel for the

plaintiffs, the defendant has not marked any document to substantiate

this case. A mere fact that he has issued reply notice on 23.01.2008

claiming that his father has left behind a “Will” and that he had also

spent money towards the wedding of his sisters (i.e Ponnusamy's

daughters) is not sufficient to hold that his wife and children have share

in the property. The least that the defendant could have done is mark the

Will dated 14.09.1994. If such a Will had been filed then, the plaintiffs

could have taken steps to implead legal representatives. A mere defence

is insufficient for the purpose of holding that the suit has to fail on the

ground of non-joinder of necessary parties.

13. Insofar as the second argument Stridhana is concerned, yet

again no evidence has been let in by the first defendant in order to

substantiate the case. In other words, the necessary evidence not having

been let in, the defence necessarily has to be rejected. Consequently, the

second appeal has to be dismissed and is accordingly dismissed. https://www.mhc.tn.gov.in/judis Page No 6 of 9

14. The Supreme Court in the case of Shub Karan Bubna Vs.

Sita Saran Bubna reported in (2009) 9 SCC 689 : (2009) 3 SCC (Civ)

820 : 2009 SCC Online SC 1531 at Page 696 held as follows:

“17. Once a court passes a preliminary decree, it is the duty of the court to ensure that the matter is referred to the Collector or a Commissioner for division unless the parties themselves agree as to the manner of division. This duty in the normal course has to be performed by the court itself as a continuation of the preliminary decree.”

15. The learned District Munsif, Tirupur, is directed to follow the

above judgment of the Supreme Court and take up the suit for passing

final decree without waiting for a petition to be filed by the plaintiffs. The

proceedings for final decree shall be completed within a period of six

months from the date of receipt of a copy of this order. No costs.