ed, as interpreted by the Full Bench of this Court in the case of v. Tahsildar, Namakkal reported in

S.A.No.632 of 2013IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12.02.2024CORAMTHE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANANS.A.No.632 of 2013andM.P.No.1 of 2013R.Kanniyappan (Deceased)1.Banu Gopan2.Nanda Kumar3.Suresh Kumar4.Thilagavathy5.Prathap6.R.Nithyanandam .. AppellantsVs.1.R.Chandran @ Chandrasekaran2.R.Rani3.R.Selvamani4.R.RajiPage No 1 of 8 https://www.mhc.tn.gov.in/judis S.A.No.632 of 20135.R.Mallika6.R.Ravikumar7.R.Mohan8.R.Kumar .. Respondents Prayer : This Second Appeal is filed under Section 100 of Civil Procedure Code, to set aside the judgment and decree dated 03.02.2012 made in A.S.No.489 of 2009 on the file of the IV Additional Judge, City Civil Court, Chennai confirming the judgment and decree dated 22.08.2008 on the file of the VII Assistant Judge, City Civil Court at Chennai in O.S.No.5673 of 2003 by dismissing the suit.For Appellants: Mr.S.Revichandran for M/s.N.MoorthiFor Respondents: Mr.G.Thiyagarajan for RR1, 2, 4, 5 & 7: Not Ready in Notice for R3 & R6: Served, No Appearance for R8JUDGMENT The present Second Appeal arises out of the judgment and decree of the Court of learned IV Additional Judge, City Civil Court at Chennai in A.S.No.489 of 2009, dated 03.02.2012 in confirming the judgment and Page No 2 of 8 https://www.mhc.tn.gov.in/judis S.A.No.632 of 2013decree of the Court of the learned VII Assistant Judge, City Civil Court at Chennai in O.S.No.5673 of 2003, dated 22.08.2006. 2. O.S.No.5673 of 2003 is a suit for partition and separate possession of 1/10th share for each of the plaintiffs, in the property that had been left behind by one A.Rathinam. The relationship between the parties are not in dispute. All of them are progenies of one A.Rathinam. A.Rathinam was married twice. Through his first wife Pushpa, he begot defendants 1 and 2. The 1st defendant died pending the litigation and therefore, the defendants 4 to 8 were impleaded. A.Rathinam married one Patturoja during the lifetime of Pushpa and begot the plaintiffs 1 to 7 and the 3rd defendant/R.Kumar. 3. It is not in dispute that Patturoja died in and around 1973 and a decade later, Pushpa also had passed away. The said A.Rathinam had passed away on 22.09.1999. He left behind his legal heirs Plaintiffs 1 to 7 and defendants 1 to 3. Consequently, the suit claiming 1/10th share for each of the plaintiffs and the defendants.Page No 3 of 8 https://www.mhc.tn.gov.in/judis S.A.No.632 of 20134. The following issues were framed by the Trial Court : 1. thjpfs; jhthtpy; nfhhpa[s;sgo jhth brhj;jpy; 1/10 ghfk; bgw mUfij cilatuh ?2. thjpfs; jhthtpy; nfhhpa[s;sgo ,uz;L filfspypUe;J tUk; tUkhdj;jpy; ghfk; bgw mUfij cilatuh ?3. ntW vd;d ghpfhuk; ?5. The 1st plaintiff/R.Chandran @ Chandrasekaran examined himself as P.W.1 and marked Ex.A1 to Ex.A6. The 1st defendant/R.Kanniyappan examined himself as D.W.1. The 3rd defendant/R.Kumar entered the witness box as D.W.2. On the side of the defendants, Ex.B1 to Ex.B13 were marked.6. The learned Trial Judge after appreciation of evidence decreed the suit for partition granting 1/10th share each to the plaintiffs and to the defendants 1 to 3. Aggrieved by the said decree, R.Kanniyappan and the sons of A.Rathinam through his 1st wife Pushpa preferred an appeal in A.S.No.489 of 2009. The learned Appellate Court confirmed the decree against which the present Second Appeal has been filed before this Court. Page No 4 of 8 https://www.mhc.tn.gov.in/judis S.A.No.632 of 20137. This Second Appeal was not admitted but the notice regarding admission was ordered on 10.12.2013. On service of summons, Mr.G.Thiyagarajan, learned counsel entered appearance on behalf of the respondents.8. Heard Mr.S.Revichandran representing Mr.N.Moorthi, learned counsel appearing on behalf of the appellants and Mr.G.Thiyagarajan, learned counsel appearing on behalf of the respondents. 9. Mr.S.Revichandran, learned counsel for the appellants would argue the following points :1.From Ex.B5, dated 20.04.1939 namely a “Koor Chit” entered into between A.Rathinam and his brothers, it becomes clear that the property is ancestral in nature.2.As the appellants alone had been shown as legal heirs of A.Rathinam in the legal heirship certificate, the plaintiffs do not have a share in the property.Page No 5 of 8 https://www.mhc.tn.gov.in/judis S.A.No.632 of 201310. I have gone through the written statement filed by the defendants 1 and 2. Nowhere they had pleaded that A.Rathinam had obtained the properties as an ancestral property and there is no admission in the plaint that the property is ancestral in nature.11. On the contrary, the plea is that A.Rathinam owned the property which is the subject matter of the suit. The plea that the property is ancestral in nature was not taken before the 1st Appellate Court also. A new plea for which there was no pleading or evidence cannot be raised for the first time in the Second Appeal. 12. Insofar as the legal heirship certificate is concerned, as interpreted by the Full Bench of this Court in the case of P.Venkatachalam Vs. Tahsildar, Namakkal reported in (2022) 4 CTC 1, it is only a relationship certificate and cannot create right or liabilities of parties. Both the questions of law failing, I am not inclined to admit this Second Appeal. Page No 6 of 8 https://www.mhc.tn.gov.in/judis S.A.No.632 of 201313. Accordingly, this Second Appeal stands dismissed. In fine, the judgment and decree of the Court of the learned IV Additional Judge, City Civil Court at Chennai in A.S.No.489 of 2009, dated 03.02.2012 in confirming the judgment and decree of the learned VII Assistant Judge, City Civil Court at Chennai in O.S.No.5673 of 2003, dated 22.08.2006 stands confirmed. The parties being close relatives, I am not inclined to impose costs.14. At this stage, the learned counsel for the appellants brought to my notice that the suit schedule mentioned property itself is only around 700 Sq.ft. and it is incapable of division. Mr.G.Thiyagarajan, learned counsel for the respondents submits that the Advocate Commissioner, who was appointed during the final decree proceedings, had filed a report stating that the property is incapable of division. Consequently, the Trial Court had directed that the property be sold in public auction. It is needless to point out that the parties are entitled to avail the rights that had been given to them under the Partition Act. By dismissing this appeal, I am only confirming the preliminary decree. If an appropriate application is filed Page No 7 of 8 https://www.mhc.tn.gov.in/judis S.A.No.632 of 2013under the Partition Act by any of the parties in the suit, I am sure that the learned Judge will consider the same. No costs. Consequently, connected Miscellaneous Petition is closed. 12.02.2024Index:Yes/No Speaking Order :Yes/NoNeutral Citation:Yes/Nomkn2To1.The IV Additional Judge, City Civil Court, Chennai 2.The VII Assistant Judge, City Civil Court, Chennai.Page No 8 of 8 https://www.mhc.tn.gov.in/judis S.A.No.632 of 2013V. LAKSHMINARAYANAN, J.mkn2S.A.No.632 of 2013andM.P.No.1 of 201312.02.2024Page No 9 of 8

S.A.No.632 of 2013IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12.02.2024CORAMTHE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANANS.A.No.632 of 2013andM.P.No.1 of 2013R.Kanniyappan (Deceased)1.Banu Gopan2.Nanda Kumar3.Suresh Kumar4.Thilagavathy5.Prathap6.R.Nithyanandam .. AppellantsVs.1.R.Chandran @ Chandrasekaran2.R.Rani3.R.Selvamani4.R.RajiPage No 1 of 8 https://www.mhc.tn.gov.in/judis S.A.No.632 of 20135.R.Mallika6.R.Ravikumar7.R.Mohan8.R.Kumar .. Respondents Prayer : This Second Appeal is filed under Section 100 of Civil Procedure Code, to set aside the judgment and decree dated 03.02.2012 made in A.S.No.489 of 2009 on the file of the IV Additional Judge, City Civil Court, Chennai confirming the judgment and decree dated 22.08.2008 on the file of the VII Assistant Judge, City Civil Court at Chennai in O.S.No.5673 of 2003 by dismissing the suit.For Appellants: Mr.S.Revichandran for M/s.N.MoorthiFor Respondents: Mr.G.Thiyagarajan for RR1, 2, 4, 5 & 7: Not Ready in Notice for R3 & R6: Served, No Appearance for R8JUDGMENT The present Second Appeal arises out of the judgment and decree of the Court of learned IV Additional Judge, City Civil Court at Chennai in A.S.No.489 of 2009, dated 03.02.2012 in confirming the judgment and Page No 2 of 8 https://www.mhc.tn.gov.in/judis S.A.No.632 of 2013decree of the Court of the learned VII Assistant Judge, City Civil Court at Chennai in O.S.No.5673 of 2003, dated 22.08.2006. 2. O.S.No.5673 of 2003 is a suit for partition and separate possession of 1/10th share for each of the plaintiffs, in the property that had been left behind by one A.Rathinam. The relationship between the parties are not in dispute. All of them are progenies of one A.Rathinam. A.Rathinam was married twice. Through his first wife Pushpa, he begot defendants 1 and 2. The 1st defendant died pending the litigation and therefore, the defendants 4 to 8 were impleaded. A.Rathinam married one Patturoja during the lifetime of Pushpa and begot the plaintiffs 1 to 7 and the 3rd defendant/R.Kumar. 3. It is not in dispute that Patturoja died in and around 1973 and a decade later, Pushpa also had passed away. The said A.Rathinam had passed away on 22.09.1999. He left behind his legal heirs Plaintiffs 1 to 7 and defendants 1 to 3. Consequently, the suit claiming 1/10th share for each of the plaintiffs and the defendants.Page No 3 of 8 https://www.mhc.tn.gov.in/judis S.A.No.632 of 20134. The following issues were framed by the Trial Court : 1. thjpfs; jhthtpy; nfhhpa[s;sgo jhth brhj;jpy; 1/10 ghfk; bgw mUfij cilatuh ?2. thjpfs; jhthtpy; nfhhpa[s;sgo ,uz;L filfspypUe;J tUk; tUkhdj;jpy; ghfk; bgw mUfij cilatuh ?3. ntW vd;d ghpfhuk; ?5. The 1st plaintiff/R.Chandran @ Chandrasekaran examined himself as P.W.1 and marked Ex.A1 to Ex.A6. The 1st defendant/R.Kanniyappan examined himself as D.W.1. The 3rd defendant/R.Kumar entered the witness box as D.W.2. On the side of the defendants, Ex.B1 to Ex.B13 were marked.6. The learned Trial Judge after appreciation of evidence decreed the suit for partition granting 1/10th share each to the plaintiffs and to the defendants 1 to 3. Aggrieved by the said decree, R.Kanniyappan and the sons of A.Rathinam through his 1st wife Pushpa preferred an appeal in A.S.No.489 of 2009. The learned Appellate Court confirmed the decree against which the present Second Appeal has been filed before this Court. Page No 4 of 8 https://www.mhc.tn.gov.in/judis S.A.No.632 of 20137. This Second Appeal was not admitted but the notice regarding admission was ordered on 10.12.2013. On service of summons, Mr.G.Thiyagarajan, learned counsel entered appearance on behalf of the respondents.8. Heard Mr.S.Revichandran representing Mr.N.Moorthi, learned counsel appearing on behalf of the appellants and Mr.G.Thiyagarajan, learned counsel appearing on behalf of the respondents. 9. Mr.S.Revichandran, learned counsel for the appellants would argue the following points :1.From Ex.B5, dated 20.04.1939 namely a “Koor Chit” entered into between A.Rathinam and his brothers, it becomes clear that the property is ancestral in nature.2.As the appellants alone had been shown as legal heirs of A.Rathinam in the legal heirship certificate, the plaintiffs do not have a share in the property.Page No 5 of 8 https://www.mhc.tn.gov.in/judis S.A.No.632 of 201310. I have gone through the written statement filed by the defendants 1 and 2. Nowhere they had pleaded that A.Rathinam had obtained the properties as an ancestral property and there is no admission in the plaint that the property is ancestral in nature.11. On the contrary, the plea is that A.Rathinam owned the property which is the subject matter of the suit. The plea that the property is ancestral in nature was not taken before the 1st Appellate Court also. A new plea for which there was no pleading or evidence cannot be raised for the first time in the Second Appeal. 12. Insofar as the legal heirship certificate is concerned, as interpreted by the Full Bench of this Court in the case of P.Venkatachalam Vs. Tahsildar, Namakkal reported in (2022) 4 CTC 1, it is only a relationship certificate and cannot create right or liabilities of parties. Both the questions of law failing, I am not inclined to admit this Second Appeal. Page No 6 of 8 https://www.mhc.tn.gov.in/judis S.A.No.632 of 201313. Accordingly, this Second Appeal stands dismissed. In fine, the judgment and decree of the Court of the learned IV Additional Judge, City Civil Court at Chennai in A.S.No.489 of 2009, dated 03.02.2012 in confirming the judgment and decree of the learned VII Assistant Judge, City Civil Court at Chennai in O.S.No.5673 of 2003, dated 22.08.2006 stands confirmed. The parties being close relatives, I am not inclined to impose costs.14. At this stage, the learned counsel for the appellants brought to my notice that the suit schedule mentioned property itself is only around 700 Sq.ft. and it is incapable of division. Mr.G.Thiyagarajan, learned counsel for the respondents submits that the Advocate Commissioner, who was appointed during the final decree proceedings, had filed a report stating that the property is incapable of division. Consequently, the Trial Court had directed that the property be sold in public auction. It is needless to point out that the parties are entitled to avail the rights that had been given to them under the Partition Act. By dismissing this appeal, I am only confirming the preliminary decree. If an appropriate application is filed Page No 7 of 8 https://www.mhc.tn.gov.in/judis S.A.No.632 of 2013under the Partition Act by any of the parties in the suit, I am sure that the learned Judge will consider the same. No costs. Consequently, connected Miscellaneous Petition is closed. 12.02.2024Index:Yes/No Speaking Order :Yes/NoNeutral Citation:Yes/Nomkn2To1.The IV Additional Judge, City Civil Court, Chennai 2.The VII Assistant Judge, City Civil Court, Chennai.Page No 8 of 8 https://www.mhc.tn.gov.in/judis S.A.No.632 of 2013V. LAKSHMINARAYANAN, J.mkn2S.A.No.632 of 2013andM.P.No.1 of 201312.02.2024Page No 9 of 8