High Court · 2025

SA No. 222 of 2014IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01-04-2025CORAMTHE HONOURABLE MRS JUSTICE R. KALAIMATHIS.A.No. 222 of 2014inM.P.No. 1 of 2014---1.J. Arulchandran2.J.Victor Kulandaisamy ....AppellantsVersus1.J.George Michael2.J.Theresa Valentine Kamalia3.J.Rajamani4.J.Pramila Sundari5.J.Marthinal Sagaya Rani(RR2 to 5 are impleaded vide Court order dated 18.12.2024 made in CMP.No. 20912 of 2023) Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree made in A.S.No. 126 of 2007, dated 06.09.2013 on the file of I Additional District Court, Coimbatore reversing the judgment and decree made in O.S.No. 741 of 1995 dated 30.01.2004 on the file of III Additional Sub Court, Coimbatore.Page Nos.1/12 https://www.mhc.tn.gov.in/judis SA No. 222 of 2014For Appellants:Mr.A.E. RavichandranFor R1:Mr.R.Prem NarayanFor RR2 to 5:Mr.V.Venkatasamy---JUDGMENTThis Second Appeal has been preferred by the sole plaintiff and the second defendant against the judgment and decree dated 06.09.2013 passed in A.S.No.126 of 2007 by the I Additional District Court, Coimbatore. 2.The parties are indicated herein as per their litigative status and their ranking before the Trial Court. 3.Heard the arguments advanced by the learned Counsels appearing on either side and perused the relevant records. 4.The case of the plaintiff is that the plaintiff's father, namely, M.Joseph was the absolute owner of the suit properties. The plaintiff's father in respect of Item No.I of the suit properties has obtained by way of registered Partition Deed on 27.07.1948. As regards, Item No.II of the suit property, he purchased the same under registered sale deed dated Page Nos.2/12 https://www.mhc.tn.gov.in/judis SA No. 222 of 201422.11.1979 and he was in a possession and enjoyment of the suit properties till his last breath. He died on 10.12.1979 leaving behind his wife, J.Arputha Mary (3rd defendant herein), three sons, J.Arul Chandran (plaintiff), J.George Michael (1st defendant) and J.Victor Kulandaisamy (2nd defendant) and four daughters, J.Theresa Valentine Kamalia, J.Rajamani, J.Pramila Sundari and J.Marthinal Sagaya Rani. During his lifetime, he executed a Will on 12.08.1978 by bequeathing all his properties including the suit properties in favour of his three sons only i.e., the plaintiff and the defendants 1 and 2 herein equally. As per the terms of Will, his wife (the 3rd defendant J.Arputha Mary) was given right to collect the rental income derived from Item No.I of the suit properties and utilize the same for herself and to help his sons only. The sons conducted the marriage of their sisters, namely, J.Pramila Sundari and J.Marthinal sagaya rani. The plaintiff's father, M.Joseph has categorically mentioned in his Will that the daughters have no right or interest on the suit properties.Page Nos.3/12 https://www.mhc.tn.gov.in/judis SA No. 222 of 20145.It is the further case of the plaintiff that the above said Will came into force immediately on the death of M.Joseph on 10.12.1979. The marriage of his daughters, namely, J.Pramilasundari and J.Marthinal Sagaya Rani were celebrated at the instance of both the plaintiff and the defendants. During the lifetime of their father, marriage of the two elder daughters were conducted by the father with the help of his sons. The water tax assessment was transferred in the name of the plaintiff and three electricity service connections were transferred in the name of the 3rd defendant. 6.After the death of their father M.Joseph, both the plaintiff and the defendants as well as two unmarried daughters, J.Pramilasundari and J.Marthinal Sagaya Rani were living together in the 1st Item of the suit properties. J.Premilasundari, J.Marthinal and Sagaya Rani got married in the year 1980 and 1986 respectively and they have been living with their husbands. The 1st defendant got married in the year 1981 and he left his parents' house in the year 1983. The plaintiff had been residing with his wife and children in a portion bearing Door No.529 (1st Page Nos.4/12 https://www.mhc.tn.gov.in/judis SA No. 222 of 2014Item) and left from the same on 13.06.1990. Due to the disturbance given by the 1st defendant, the 3rd defendant is living in one portion bearing Door No. 531 in the 1st Item of the suit property. The portions bearing Door Nos.525 to 529, 532 and 533 are in the occupation of the tenants and they have been paying the rents to the 3rd defendant. From June 1990 onwards, the plaintiff is demanding for the partition of entire suit property by metes and bounds with reference to good and bad soil by dividing the properties into three equal share and allot one such share to the plaintiff. As it is postponed, the suit for partition was laid.7.On behalf of the 1st defendant, it is contended that the execution of the Will by their father was admitted and the three brothers are entitled to 1/3rd share in the Item No.I of the suit property. The 1st defendant was working as Manager in multinational and national companies and he started earning at the age of 25 years. He was contributing Rs.3,500/- per month on an average, for the family from and out of his earnings during the lifetime of his father. The 1st defendant celebrated the marriage of his two sisters without the financial assistance Page Nos.5/12 https://www.mhc.tn.gov.in/judis SA No. 222 of 2014of his brothers. Even during the lifetime of his father, the 1st defendant helped his father for the marriage of his elder daughters. The plaintiff has to prove the fact that with the consent of the parties water tax assessment was transferred in his name and three electricity service connections were transferred in the name of the 3rd defendant. The 1st defendant would further state that he contributed the entire sale consideration for the purchase of Item No.II of the plaint schedule property in the year 1979. The sale consideration was paid out of the money withdrawn from the bank account of the 1st defendant when his father was alive and the 1st defendant was pursuaded by his father to purchase the Item No.II of the suit property in the name of his father.8.It is the case of 2nd respondent, that his father had been working as teacher in a school at Coimbatore, for 25 years. He retired from service in the year 1979 and out of his retirement benefits, he purchased Item No.II of the suit property. Therefore, Item No.II of the suit property is self acquired property of his father purchased out of his money. The 2nd defendant is entitled for 1/3rd share in both the Item Nos.I Page Nos.6/12 https://www.mhc.tn.gov.in/judis SA No. 222 of 2014& II of the suit properties.9.Whereas, the 3rd defendant who is the mother of the plaintiffs' and the other defendants would state that her husband got the Item No.I of the suit property through registered Partition Deed dated 27.07.1948. As regards, Item No.II of the suit property, her husband purchased the same through registered sale deed dated 23.11.1979. She has admitted that her husband executed Will dated 12.08.1978 in favour of her and in favour of his three sons. She would also state that as per the terms of Will, she has been given life estate. From and out of the income derived from the 1st Item marriage of J.Premilasundari and J.Marthinal to be performed by his wife, and three sons. As per the terms of the Will, the sons are entitled to 1/3rd equal share in the suit properties. She does not have any objection for the same. 10.At trial, to substantiate the plaint details, on the plaintiff's side the plaintiff has been examined as PW1 and 13 documents were marked. Copy of the Will dated 12.08.1978 executed by M.Joseph is Ex.A3. On Page Nos.7/12 https://www.mhc.tn.gov.in/judis SA No. 222 of 2014the defendants' side, the 1st and 2nd defendants have been examined as DW1 and DW2 and two documents have been marked. 11.The Trial Court upon consideration of oral and documentary evidence and after hearing the arguments advanced by either side, it was held that all the defendants have admitted the execution of Will dated 12.08.1978 by M.Joseph, holding that the plaintiff and the 1st and 2nd defendants are entitled for 1/3rd share each in the suit properties, to that effect, preliminary decree was passed.12.Aggrieved by the same, the 1st defendant J.George Michael preferred appeal against the judgment and decree of the trial Court before the I Additional District Court, Coimbatore, in A.S.No. 126 of 2007. The learned I Additional Ditrict Court, Coimbatore, upon consideration of the entire records and after hearing the arguments advanced by either side, ordered to allow the appeal by setting aside the judgment and decree of the trial Court. Page Nos.8/12 https://www.mhc.tn.gov.in/judis SA No. 222 of 201413.It is an admitted fact that M.Joseph and the 3rd defendant, J.Arputha Mary have three sons, J.Arul Chandran (plaintiff), J.George Michael (1st defendant), J.Victor Kulandaisamy (2nd defendant) and four daughters, J.Theresa Valentine Kamalia, J.Rajamani, J.Pramila Sundari and J.Marthinal Sagaya Rani. Though the suit was allowed by one of the sons of late.M.Joseph, based on the Will, said to have been executed by his father. Admittedly, the daughters are not arrayed as a party to the said suit. No doubt, they are necessary parties for the effective disposal of the partition suit. It is relevant to extract the operative portions of the judgment passed by the First Appellate Court in A.S.No.126 of 2007 are as follows:-30/tprhuiz ePjpkd;wk; th/rh/M/3 kw;Wk; gp/rh/M/1“ Mtzj;ij capy; Mtzk; vd;Wk;. mJ rl;lg;go bry;Yk; vd;Wk; jPh;Kot[ fz;Ls;sJ rhpahdJ my;y/ n$hrg;gpd; ehd;F kfs;fSf;Fk; ,t;tHf;F gw;wp bjhpa[k; vd;Wk;. ehsJ tiu ,t;tHf;fpy; mth;fs; jug;gpdh;fshf j';fis ,izj;Jf;bfhs;s Kd;tutpy;iy vd;Wk;. mth;fs; njitahd mtrpaj; jug;gpdh;fs; my;y vd;Wk; Kot[ fz;oUg;gJ rhpahdJ my;y vd;nw ,e;ePjpkd;wk; Kot[ bra;fpwJ/ vdnt. tprhuiz ePjpkd;wj;jpd; jPh;g;g[ kw;Wk; jPh;g;ghizapd; ,e;ePjpkd;wk; jiyaPL bra;aj;jf;fJ vd;nw ,e;ePjpkd;wk; Kot[ bra;fpwJ/ nkny TW(1) Kjy; (4)?w;F jPh;Kot[ fz;lgo ,k;nky;KiwaPL mDkjpf;fg;gl;L. tprhuiz Page Nos.9/12 https://www.mhc.tn.gov.in/judis SA No. 222 of 2014ePjpkd;wj;jpd; jPh;g;g[ kw;Wk; jPh;g;ghiz ePf;fwt[ bra;aj;jf;fJ vd Kot[ bra;fpwJ/ mnjntisapy;. tHf;F ghfg;gphptpid tHf;F Mjyhy; rl;lg;go njitahd midj;J mtrpaj; jug;gpdh;fisa[k; (mrypd; 24d; gf;f Kot[) jug;gpduhf;fp xU';fpize;j xU ghf tHf;F (Comprehensive Suit) jhf;fy; bra;tjw;F ,j;jPh;g;g[ kw;Wk; jPh;g;ghid xU jilahf ,Uf;fhJ vd;nw ,e;ePjpkd;wk; fUJfpwJ/ jug;gpdh;fspd; cwt[ Kiwiaf; fUj;jpy; bfhz;L ,k;nky;KiwaPl;oy; bryt[ bjhifia jug;gpdh;fs; mtuth;fns Vw;f ntz;Lk;/ 31/Kothf. tHf;fpil tpz;zg;g vz;/ 453-2013 kDthdJ js;Sgo bra;ag;gl;Lk;. ,k;nky;KiwaPL mDkjpf;fg;gl;Lk;. nfhak;g[j;Jhh; 3?tJ TLjy; rhh;g[ ePjpkd;wk; K/c/t/vz;/ 741-1995 tHf;fpy; 30/01/2004 md;W gpwg;gpj;Js;s jPh;g;g[ kw;Wk; jPh;g;ghiz ePf;fwt[ bra;ag;gl;L. K/c/t/vz;/ 741-1995 tHf;F js;Sgo bra;ag;gl;L cj;jutplg;gLfpwJ/ jug;gpdh;fspd; cwt[ Kiwiaf; fUj;jpy;bfhz;L ,k;nky;KiwaPl;od; bryt[ bjhifia jug;gpdh;fs; mtuth;fns Vw;f ntz;Lk;/ ”14.The suit for partition was allowed and necessary parties should have been arrayed in order to have effective adjudication of the issues and the First Appellate Court has rightly concluded that without arraying the daughters of late.M.Joseph, as parties to the suit, the judgment of the Trial Court was rightly set aside. 15.It was also stated that the daughters of late.M.Joseph, have filed a suit for partition in O.S.No.1039 of 2022 before the IV Additional Page Nos.10/12 https://www.mhc.tn.gov.in/judis SA No. 222 of 2014District Court, Coimbatore, and the same is pending. Based on the aforesaid discussions and observations and the Second Appeal is necessarily to be dismissed and thereby the same is dismissed. 16.Considering the fact that the suit for partition was allowed originally in the year 1995 and in continuation another round of litigation has been commenced in the year 2022. The learned Trial Court is directed to dispose of the Partition Suit in O.S.No. 1039 of 2022 on the file of District Court, Coimbatore, at the earliest as all the parties to the suit are aged about 75 years.17.With the above directions, the Second Appeal is disposed of. There shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.01.04.2025MSMTo1.The I Additional District Court, Coimbatore.2.The III Additional Sub Court, Coimbatore.Page Nos.11/12 https://www.mhc.tn.gov.in/judis SA No. 222 of 2014R. KALAIMATHI, JMSMS.A.No. 222 of 2014 01.04.2025Page Nos.12/12