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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. Subbiah, J.
Velusamy and Others
Versus
P.C. Pangajam and Others
C.M.A. No. 2268 of 2013 and C.R.P. (NPD) No. 3120 of 2013 and M.P. No. 1 of 2013 in C.M.A. No. 2268 of 2013
Decided on : 28 October 2014
Hindu Succession Act - Section 15 - Suit for partition – Claim of compensation – Allotment of shares - Appellants in revision petitioners in and of deceased who was the plaintiff in and they are also son and daughters of deceased who was first defendant in said suit on file of Sub Court respondents as well as are defendants said suit - They are legal heirs of one who was pre-deceased son of plaintiff - Respondents in appeal as well as revision petition filed before Additional District Court Erode as against preliminary decree passed - Pending appeal respondents have taken out an application of to include certain left out properties in suit for partition file - Lower appellate Court by order has allowed said application in filed by respondents herein to include left out properties in suit for partition - Further lower appellate Court has allowed appeal in by setting aside preliminary decree passed trial Court and remanded matter to trial Court with a direction to include left out properties in plaint filed in and pass a fresh preliminary decree by affording an opportunity to both sides to adduce evidence – Held, Further court find that it is admitted by counsel appearing for respondents that appellants have not imp leaded their father as one of parties in - As per Section 15 of Hindu Succession Act a property of a female Hindu dying intestate shall devolve according to rules set out in Section 16 upon sons and daughters including the children of any pre-deceased son or daughter and husband - Therefore husband of first appellant is also one of sharers in respect of properties in question - Hence court opinion appellants revision petitioners who are son and daughters of first defendant deceased Maximal alone are not entitled for shares of their mother and her husband is also entitled for share of his wife - Under such circumstances respondents ought to have imp leaded husband of first defendant as one of defendants - Therefore preliminary decree passed by Court below without imp leading husband of deceased first defendant father of appellants is liable to be set aside - Since this Court has come to conclusion that father of first appellant ought to have been imp leaded as one of parties confirming order of remand alone this Court directs appellants revision petitioners to file an appropriate application before trial Court to impaled their father - On filing such application trial Court is directed to allow same and after hearing both parties pass fresh preliminary decree by re-working shares within a period of four months from date of receipt of a copy of this judgment - In result civil miscellaneous appeal is partly allowed by confirming order of remand alone passed in by Additional District Court Erode at - No costs - Consequently connected miscellaneous petition is closed - Revision petition allowed
1. C.M.A.No.2268 of 2013 and C.R.P (NPD) No.3120 of 2013 arise out of the same issue. Hence, both the cases are disposed of by way of this common judgment.
2. The appellants in C.M.A.No.2268 of 2013 and the petitioners in C.R.P.(NPD) No.3120 of 2013 are one and the same.
3. The appellants in C.M.A.No.2268 of 2013 viz., Velusamy, Parameswari and Chitradevi, who are the revision petitioners in C.R.P.(NPD) No.3120 of 2013 are the grand son and grand daughters of the deceased Valliammal, who was the plaintiff in O.S.No.65 of 1997 and they are also the son and daughters of the deceased Mariammal, who was the first defendant in the said suit on the file of the Sub Court, Gobichettipalayam. The respondents in C.M.A.No.2268 of 2013 as well as C.R.P.(NPD) No.3120 of 2013 viz., P.C.Pangajam, M. Sri Ganesh, M. Sri Sakthivel and M. Sri Saravanan are defendants 2 to 5 in the said suit. They are the legal heirs of one P.C. Mariappan, who was the pre-deceased son of the plaintiff Valliammal.
4. The respondents in the appeal as well as revision petition, filed A.S.No.12 of 2012 before the III Additional District Court, Erode, as against the preliminary decree dated 7.4.2011 passed in I.A.No.389 of 2010 in O.S.No.65 of 1997.
5. Pending appeal in A.S.No.12 of 2012, the respondents have taken out an application in I.A.No.662 of 2012 to include certain left out properties in the suit for partition filed in O.S.No.65 of 1997.
6. The lower appellate Court, by order dated 1.10.2012, has allowed the said application in I.A.No.662 of 2012 filed by the respondents herein to include the left out properties in the suit for partition. Further, the lower appellate Court, has allowed the appeal in A.S.No.12 of 2012 by setting aside the preliminary decree passed in I.A.No.389 of 2010 in O.S.No.65 of 1997 by the trial Court and remanded the matter to the trial Court with a direction to include the left out properties in the plaint filed in O.S.No.65 of 1997 and pass a fresh preliminary decree by affording an opportunity to both sides to adduce evidence.
7. Challenging the order of remand passed by the lower appellate Court by setting aside the preliminary decree dated 10.7.2002, C.M.A.No.2268 of 2013 has been filed. Aggrieved over the order passed in I.A.No.662 of 2012 in allowing the application filed by the respondents to include the left out properties in the suit schedule, C.R.P (NPD) No.3120 of 2013 has been filed.
8. Now, the brief facts, which are necessary to decide the issue involved in C.M.A.No.2268 of 2013 and C.R.P.(NPD) No.3120 of 2013, are as follows:
(a) Before narrating the facts of the case, for easy understanding, the genealogy of the parties is given below:
(b) Originally, the suit in O.S.No.65 of 1997 has been filed by the above said Valliammal, wife of Chinnu @ Chinnagounder @ Muthugounder as against defendants 1 to 5 for partition of certain properties described in schedule ‘A’ to ‘F’ of the plaint. In the said suit, the daughter of said Valliammal viz. , Mariammal was shown as first defendant. Since the son of Valliammalviz. , P.C. Mariappan, pre-deceased her on 2.8.1995, his wife and sons were shown as defendants 2 to 5.
(c) In the said suit, it has been stated by the said Valliammal that Item No.1 of suit ‘A’ schedule property originally belonged to the father and mother of her husband Chinnu @ Chinnagounder @ Muthugounder. Her husband obtained the said property in a family partition. Item No.2 of suit ‘A’ schedule property was purchased by the husband of Valliammal separately out of his own income. So far as ‘B’ and ‘C’ schedule properties are concerned, it is the case of the plaintiff Valliammal that the said properties were purchased by her husband Chinnu @ Chinnagounder @ Muthugounder separately out of his own income as well as the income earned by her. So far as ‘D’ schedule property is concerned, it was purchased out of the income earned by her son P.C. Mariappan. ‘E’ and ‘F’ properties viz., Mahendra Tourist Van and the chit amo
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