Madras High Court
G.Kannammal @ Kannathal vs R. Ramasamy Gounder on 18 September, 2024
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
A.S.No.533 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date: 18.09.2024
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
A.S.No.533 of 2017
G.Kannammal @ Kannathal ...Appellant
Vs.
1. R. Ramasamy Gounder
2. R. Arumugam
3. R. Kumaresan
4. N. Murugesan
5. N. Palanisamy
6. Anandhi
7. Sangeetha ...Respondents
PRAYER: Appeal Suit filed under Section 96 of C.P.C against the judgment
and decree dated 18.04.2017 made in O.S.No.234 of 2012 on the file of the
learned III Additional District Judge, Erode at Gobichettipalayam.
For Appellant : M/s.A.V.Arun
For R3 : Mr.R.P.Rupanchakravarthy
For R6 & R7 : Mr.S.Kaithaimalai Kumaran
For R2, 4 & 5 : No Appearance
R1 : Died
Page 1 of 8
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A.S.No.533 of 2017
JUDGMENT
The Appeal suit has been filed against judgment and decree dated
18.04.2017 made in O.S.No.234 of 2012 on the file of the learned III
Additional District Judge, Erode at Gobichettipalayam.
2. The learned Counsel for the Appellant submitted that the Plaintiff in
O.S.No.234 of 2012 on the file of the learned III Additional District Judge,
Erode at Gobichettipalayam is the Appellant herein.
3. It is the contention of the learned Counsel for the Appellant that the
suit was filed by the Plaintiff seeking partition in which the Defendant-1 is
the father of the Plaintiff. Defendant-2 is the brother of the Plaintiff.
Defendant-3 is the son of the Defendant-1 through his 2nd wife. Defendant-4
and Defendant-5 are the purchasers of the property in item 3.
4. Learned Counsel for the Appellant invited the attention of this Court
to the averments in the plaint and written statement filed by Defendant-1
wherein he admits his relationship, but denies the Plaintiff's entitlement to
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partition on the ground that she was married prior to 1989 and hence she
cannot seek partition. Also he had in the written statement stated that the 2nd
wife and daughter had not been impleaded.
5. In the written statement, he had stated that after the death of the 1st
wife only he married 2nd wife and through her, a son and a daughter were
born. Also he had disputed that he has acquired the property from the income
not derived from the ancestral property. He had claimed that it is the self
acquired property of his own income derived from the sale of Item 1 and
Item 2 is self acquired property for which he had executed settlement deed
in favour of the son born through 2nd wife, the 3rd Defendant.
6. It is the contention of the learned Counsel for the Appellant that the
Plaintiff in O.S.No.234 of 2012 had examined herself as P.W-1, the husband
of the Plaintiff was examined as P.W-2, who is her maternal uncle and the
staff of the temple in which the marriage of the Plaintiff took place was
examined as P.W-3. The documents in support of the contention of the
Plaintiff were marked as Ex.A-1 to Ex.A-6. Ex.A-1 is the partition deed in
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which the suit property was allotted in favour of the paternal grand father of
the Plaintiff. Rakkia Gounder. Ex.A-2 is the sale deed executed by the father
of the Plaintiff in favour of the Defendant-4 and Defendant-5. Ex.A-3 is the
Partition deed dated 12.06.1986 between the Defendant-1 and Defendant-2
and the paternal grand mother of the Plaintiff. Ex.A-5 is the settlement deed
dated 31.08.2012 executed by the Defendant-1 in favour of the Defendant-3.
Ex.A-6 is the temple receipt of the marriage of the Plaintiff dated
15.05.1989. The Defendant-1 had examined himself as D.W-1. Defendant-4
was examined as D.W-2 and Defendant-3 was examined as D.W-3.
7. After full trial, the learned Judge had on proper appreciation of
evidence, arrived at a conclusion that the Plaintiff is entitled to claim share in
the suit properties but had not granted the relief of partition on the ground
that all the sharers had not been impleaded in the suit. Aggrieved by the
same, the Plaintiff had preferred this Appeal.
8. It is the contention of the learned Counsel for the Appellant that
pending Appeal, the father of the Plaintiff/Appellant died. Therefore, all the
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legal heirs were impleaded. Therefore ,what had been pointed by the learned
III Additional District and Sessions Judge, Erode at Gobichettipalayam in the
judgment had been overcome in the Appeal. Therefore he seeks that the
other side, the Respondent can concede to the passing of the preliminary
decree by this Court.
9. The legal heir of the Respondent-1 through his 2nd wife, the son of
the Defendant-1 through the 2nd wife was already a party as Defendant-3.
10. Learned Counsel for the Respondents 6 and 7 would submit that if
the matter is remanded back to the same Court, the impleaded parties, 2nd
wife and daughter of Defendant-1 through the 2nd wife may have pleadings to
file, in which case, the learned Judge shall hold trial to adduce additional
evidence regarding the newly impleaded parties. Therefore, this Court may
issue proper direction to the learned III Additional District and Sessions
Judge, Erode at Gobichettipalayam to dispose of the suit afresh.
11. In the light of the submission of the learned Counsel for the
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Appellant as well as the learned Counsel for the Respondents, the
Appellant/Plaintiff is directed to amend the plaint to implead the 2nd wife of
Defendant-1 and the daughter of Defendant-1 born through the 2nd wife as
newly added parties / Defendants. The matter is remanded back to the
learned III Additional District and Sessions Judge, Erode at
Gobichettipalayam.
12. The learned III Additional District and Sessions Judge, Erode at
Gobichettipalayam is directed to dispose of the case afresh after amendment
of the plaint by the Plaintiff impleading the 2nd wife of Defendant-1 and
their daughter as Defendants. After such impleading of parties, the newly
added parties shall be permitted to file their written statement (written
statement of newly added parties). After filing of written statement of newly
added parties, the learned III Additional District and Sessions Judge, Erode
at Gobichettipalayam shall hear both the Plaintiff and Defendants Counsel
regarding additional issues and frame additional issues if any and shall
proceed with recording additional evidence in the light of the written
statement filed by newly added parties / Defendants.
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13. The amendment of plaint pleadings shall be completed by Plaintiff
within a period of two months from the date of receipt of records in the suit
after order of remand.
14. The newly added parties shall be granted sufficient time of two
months to file their written statement. After filing of written statement by
newly added parties (Defendants) the Court shall complete the recording of
evidence within a period of two months thereafter. After the completion of
recording of evidence, the suit shall be disposed on merits and in accordance
with law within a period of three (3) months from the date of completion of
recording of evidence and shall report compliance of order of remand and
disposal of the suit on merits.
18.09.2024
shl
Index : Yes/No
Speaking/Non-speaking order
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SATHI KUMAR SUKUMARA KURUP, J.
To
1. The III Additional Distrtict Judge,
Erode at Gobichettipalayam.
2. The Section Officer,
V.R.Section,
High Court of Madras
18.09.2024
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