A.S.(MD).No.141 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.01.2024
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
AND
THE HON'BLE MR.JUSTICE C.KUMARAPPAN
A.S.(MD).No.141 of 2016
and
C.M.P.(MD).Nos.9491 and 9492 of 2016
1.Pon Sumathi
2.Pon Sangeetha .. Appellants/Plaintiffs
Vs.
1.Vellaisamy
2.Bharathi
3.Jeyamani .. Respondents/Defendants
PRAYER: Appeal Suit filed under Section 96 r/w Order 41 Rule 1 and 2 of
Civil Procedure Code, against the judgment and decree dated 21.12.2012
passed in O.S.No.64 of 2010 on the file of 2nd Additional District Court,
Tuticorin.
For Appellants : Mr.M.P.Senthil
For R-1 & R-2 : Mr.G.Prabhu Rajadurai
For R-3 : No appearance
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A.S.(MD).No.141 of 2016
JUDGMENT
DR.G.JAYACHANDRAN,J.
and
C.KUMARAPPAN,J.
The present Appeal Suit is filed being aggrieved by the dismissal of
the partition suit filed by the children of second wife of one Marimuthu.
2. The short point involved in this appeal, which warrants remand
back to the Trial Court, are as follows:
(i) The property, which is now sought to be divided, originally
belongs to one Shanmugam Aegali, who left behind two sons, by name,
Rajamani and Samayandi. The plaintiffs claimed that Rajamani and
Samayandi orally divided the property and the property now under dispute
was allotted to Samayandi, who had two children, by name, Lakshmi and
Marimuthu. The contesting parties are the descendants of Marimuthu born
through the first wife Pappa and second wife Mariammal.
(ii) When the daughters born through the second wife, Mariammal,
laid the suit for partition of the property, which is a residential house and
agricultural land measuring 27 cents, claiming that they are entitled for
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A.S.(MD).No.141 of 2016
share along with the children born through the first wife Pappa, it was
contested by the defendants 1 and 2 that the plaintiffs have no right in the
property and the property had been bequeathed to them by their grandfather
Samayandi through a Will marked as Ex.B8. Further, it was also contended
that the son and daughter of Samayandi, namely, Marimuthu and Lakshmi
respectively, were not made parties to the suit and the suit suffers for
non-joinder of necessary parties.
3. The Trial Court, after framing necessary issues, dismissed the suit
by accepting the validity and execution of the Will marked as Ex.B8 and
also on the ground of non-joinder of necessary parties.
4. Being aggrieved, the appeal suit is filed on the ground that pending
appeal, Marimuthu passed away on 01.03.2022 and further, the Trial Court
has miserably failed to take note of the mandatory provision of Section 68
of Indian Evidence Act, which requires testimony of one of the attesting
witnesses to prove the Will.
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A.S.(MD).No.141 of 2016
5. Heard the learned counsels and perused the materials available on
record. The points for determination in this appeal are as follows:
(i) Whether Ex.B8 Will can be relied upon to decide the suit for
partition in this case and whether non-joinder of necessary parties will take
away the right of the plaintiffs if they are able to prove that they were born
to Marimuthu?
6. This Court is of the view that regarding the omission of the
plaintiffs not impleading the necessary parties, the demise of Marimuthu has
to some extent mitigated the omission and further, the improper appreciation
of Ex.B8 Will for deciding the issue requires remand of the matter back to
the Trial Court giving liberty to the parties to make necessary amendment in
their pleadings and let in evidence to substantiate their plea in addition to
the available evidence.
7. In the result, the impugned judgment and decree dated 21.12.2012
passed by the 2nd Additional District Court, Tuticorin in O.S.No.64 of 2010
is set aside and the matter is remanded back to the Trial Court. The suit may
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A.S.(MD).No.141 of 2016
be re-admitted and proceeded in accordance with law. Accordingly, the
Appeal Suit is allowed. There shall be no order as to costs. Consequently,
connected miscellaneous petitions are closed.
(G.J.,J.) (C.K.,J.)
31.01.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
Lm
To
1.The 2nd Additional District Court,
Tuticorin.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S.(MD).No.141 of 2016
DR.G.JAYACHANDRAN,J.
and
C.KUMARAPPAN,J.
Lm
A.S.(MD).No.141 of 2016
31.01.2024
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