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2017 Supreme(Mad) 3994
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBBIAH, A.D.JAGADISH CHANDIRA, JJ.
Jayaprakash and Ors. - Appellants
Versus
Nandhakumar and Ors. - Respondent
A.S.No.432 of 2011 and C.M.P.No.8005 of 2017
Decided on : 24-08-2017
Advocate Appeared:
For the Appellants : Mr.K.S.Sankhar Murali
For the Respondents: Mr.T.M.Hariharan, Mr.M.Ananthakumar.
Headnote:
Civil Procedure Code, 1908 – Order XLI , Rule 27 – Decree for partition – Appeal has been filed by the appellants as against the judgment and decree passed by the learned Additional District Judge (Fast Track Court No.1), Salem, dismissing the suit in O.S. filed by them for passing preliminary decree for partition of the suit schedule properties – Held, There should be some evidence on record and if there is any lacuna in that evidence, in order to remove the lacuna the additional evidence can be received. – It is settled principle that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case. – It is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. – In the instant case, when there is absolutely no evidence adduced by the plaintiff before the trial Court, the question of removing the lacuna does not arise. – Further, the documents now sought to be marked on the side of the plaintiffs were already available with them. – It is also not the case of the plaintiffs that they were not aware of the documents now sought to be produced or that they could not produce the same inspite of due diligence. – Though the plaintiffs produced the documents along with the plaint, they have refrained from marking the same during the course of trial. – The reason stated by the plaintiffs for non-marking the said documents during the course of trial, cannot be accepted. – Under such circumstances, Court is of the opinion that the appellants/plaintiffs have not made out any case for reception of additional evidence in the appeal. – Hence, C.M.P. filed by the appellants/plaintiffs for reception of additional documents is liable to be dismissed. – Court is of the opinion that the appellants/plaintiffs have not made out any case on merits to reverse the judgment and decree passed by the Trial Court – Appeal Dismissed
Key Points: - There is no content to include as key points because the required references are not provided in the requested format.
Question 1?
R. SUBBIAH, J.
1. This appeal has been filed by the appellants as against the judgment and decree dated 30.08.2011 passed by the learned Additional District Judge (Fast Track Court No.1), Salem, dismissing the suit in O.S.No.43 of 2007 filed by them for passing preliminary decree for partition of the suit schedule properties.
2. The appellants herein are the plaintiffs and the respondents herein are the defendants before the Trial Court. The appellants/plaintiffs are the legal heirs of one Venugopal Chettiar who were born through his first wife Kannammal. The 7th respondent/7th defendant is the second wife of the said Venugopal Chettiar and the respondents 1 to 6/defendants 1 to 6 are the children of the said Venugopal Chettiar born through his second wife - 7th respondent/7th defendant. For the sake of convenience, hereinafter the parties will be referred to as the plaintiffs and the defendants.
3. The brief facts of the case of the plaintiffs, inter alia, are as follows_
3-1.It is the case of the plaintiffs that one Rangasamy Chettiar is the common ancestor of the plaintiffs and the defendants. The wife of the said Rangasamy Chettiar was one Lakshmi Ammal. The said Rangasamy Chettiar had three sons viz., Venugopala Chettiar, Sundaravel Chettiar and Ramanatha Chettiar. The said Rangasamy Chettiar, along with his three sons, was doing dhal business as their family business in the name and style of Rangasamy Chettiar & Sons Dhal Mill, a partnership firm. The said business is a joint family business of Rangasamy Chettiar, being managed by V.R.Venugopal Chettiar, on behalf of the joint family with another partner one Duraisamy Chettiar. The said joint family was also doing yet another business with the joint family funds, as a business capital, in the name and style of Jothi & Co Tapioca factory, a partnership business, which business was also managed by V.R.Venugopal Chettiar as one of the partners. The above said Duraisamy Chettiar and one Anthonisamy Mudhaliar were also partners in the said partnership business. That apart, the said joint family was also doing another business viz., commission mundy business in the name and style of Rangasamy Chettiar Commission Mundy at Leigh Bazaar, Salem.
3-2.While so, in the year 1948, a partition was effected in the joint family of Rangasamy Chettiar at the instance of the respectable mediators, whereby the entire assets and businesses of the joint family were divided among the coparceners of the joint family and a regular partition deed was executed between the members of the family on 03.06.1948, which document was registered as Doc.No.1840/1948 at the Joint Sub-Registrar Office-III, Salem. As per the said partition, the father Rangasami Chettiar and his wife Lakshmi Ammal were allotted 'A' Schedule property of the partition deed, which was the family house, allotting them life interest in the same, with a further covenant that after their demise, the same should be devolved equally on their three sons viz., Venugopal Chettiar, Sundaravel Chettiar and Ramanatha Chettiar. The 'B' Schedule properties of the partition deed, viz., the family business Rangasamy Chettiar & Sons Dhal Mill and Jothi & Co Tapioca Factory were allotted to Venugopal Chettiar, along with the deposits in Oriental Insurance Company & Bombay Mutual Insurance Company. Another son Sundaravel was allotted the family business "the Rangasami Chettiar Commission mandi along with deposits in Oriental Insurance Company.
3-3.Subsequent to partition, Mr.Duraisamy Chettiar, who was also a partner of Rangasamy Chettiar & Sons Dhall Mill, joined with Venugopal Chettiar to continue to run the said Dhal Mill business. Similarly, one Anthonisamy Mudhaliar, who was a partner of Jothi & Co Tapioca Factory, joined with Venugopal Chettiar to continue to run Jothi & Co Tapioca Factory. During the period from 1948 to 1953, both the said companies, viz., Rengasamy Chettiar & Sons Dhall Mill and Jothi & Co.Tapioca Factory earned enormous
