Madras High Court
Gurusamy Maniyakarar vs Mariappan Maniyakarar on 1 April, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
A.S.(MD)No.112 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.04.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
and
THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN
A.S.(MD)No.112 of 2018
and
C.M.P.(MD)No.5766 of 2018
Gurusamy Maniyakarar ... Appellant
Vs.
Mariappan Maniyakarar ... Respondent
Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code, to
set aside the judgment and decree dated 02.01.2018 made in O.S.No.34
of 2013 on the file of the II Additional District Court, Tuticorin.
For Appellant : Mr.S.Siva Thilakar
For Respondent : Mr.J.Parekhkumar
1/8
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A.S.(MD)No.112 of 2018
JUDGMENT
This appeal arises out of a suit for partition. The appellant herein
filed O.S.No.34 of 2013 on the file of the II Additional District Court,
Thoothukudi claiming half share in the suit schedule properties. The
appellant and the respondent herein are brothers. Their father /
Muthurakumaniyam was twice married. The appellant and the
respondent are the sons born through the first wife / Avudai Parvathi.
Apart from the parties herein, there was a daughter by name, Rajalakshmi
born through the first wife. Muthurakumaniyam got married to one
Asuvathi, who was the sister of Avudai Parvathi. Through the second
wife, as many as four daughters were born.
2.The respondent herein who was shown as the sole defendant
filed written statement. In the written statement, the defendant expressed
his no objection for partitioning the suit first schedule. However, he
claimed that the suit second schedule was his self acquired and absolute
property.
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3.Based on the pleadings, the Court below framed the necessary
issues. The plaintiff examined himself as P.W.1 and Exs.A1 to A3 were
marked. The defendant examined himself as D.W.1 and two other
witnesses were also examined on his side and Exs.B1 to B4 were
marked. Through the witnesses also, certain documents were marked.
The trial Judge vide judgment and decree dated 02.01.2018 dismissed the
suit. Challenging the same, this appeal came to be filed.
4.The learned counsel for the appellant wanted us to remand the
matter to the file of the trial Court.
5.Per contra, the learned counsel for the respondent submitted that
the impugned judgment and decree do not warrant interference. He
pointed out that the suit first schedule was already partitioned way back
in the year 1975. The learned counsel further pointed out that the
plaintiff himself admitted this factual aspect. The suit first schedule was
partitioned into three. One share was taken by the plaintiff. One share
was allotted to the defendant. One share was taken by the father /
Muthurakumaniyam. It appears that the share allotted to the father was
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settled by him during his life time in favour of the second wife /
Asuvathi.
6.According to the learned counsel for the respondent, the first suit
schedule was not amenable to partition.
7.This argument undoubtedly is having considerable force and
substance. Unfortunately, this argument runs counter to the own pleading
of the respondent. Having pleaded twice in the written statement that the
suit first schedule can be partitioned, it does not lie in the mouth in the
respondent to now argue to the contrary before this Bench.
8.That apart, the document whereby the so-called 1/3rd share of the
father was settled in favour of the second wife was also not marked
before the Court below. If at all, it can only be adduced before us by way
of additional evidence.
9.The question that arises for consideration is whether in the
absence of pleading, such an evidence can be allowed to be adduced.
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10.As regards the suit second schedule, according to the plaint
averment, it is a joint family property though it stands in the name of the
defendant. As far as suit second schedule is concerned, the Court below
had negatived the plea for partition in a single sentence. The Court
below had noted that suit second schedule stands in the name of the
defendant in view of Ex.B1/ sale deed dated 20.10.1970. After recording
that the defendant is in possession as evidenced by the revenue record,
the Court below had held that the plaintiff cannot have share in the said
property. We are of the view that this contention advanced by the learned
counsel for the plaintiff have not been dealt with or adverted to by the
Court below.
11.The suit also suffers from the vice of non-joinder of necessary
parties. The plaintiff ought to have impleaded his sister / Rajalakshmi as
well as the four half sisters. The manner in which the suit had been
disposed of is highly unsatisfactory.
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12.In this view of the matter, we set aside the impugned judgment
and decree and remand the matter to the file of the trial Court. We grant
liberty to the plaintiff to implead his sister and half sisters. We make it
clear that the evidence already adduced by the plaintiff will very much
hold and it will not be effaced. The parties are at liberty to adduce
further evidence.
13.The appeal is allowed accordingly. No costs. Consequently,
connected miscellaneous petition is closed.
(G.R.S. J.,) & (M.J.R. J.,)
01.04.2025
NCC : Yes/No
Index : Yes / No
Internet : Yes/ No
ias
To:
The II Additional District Court,
Tuticorin.
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Copy to:
The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN, J.
and
M.JOTHIRAMAN, J.
ias
01.04.2025
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