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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBRAMANIAN, J.
J. Ramajayam (since deceased) & Others - Appellants
Versus
Rajasekaran - Respondent
S.A. No. 8 of 2014
Decided On : 03-10-2019
Civil Procedure Code,1908 - Section 100 - Claim that krishnasamy padaiyatchi – Death - Properties originally belonged one son through first wife - After death had married to one as his second wife and through her he had begotten defendants suit - Couple have one more daughter viz. who is no more - plaintiff is brothers grandson - According to plaintiff since gave step motherly treatment he was brought up son of and father of the plaintiff had died at young age and therefore has taken care of family and he has also been shown as guardian of plaintiff and other children - Therefore out of love and affection had towards family executed Will bequeathing properties to plaintiff died - Therefore according to plaintiff he had become absolute owner of properties as per the Will and the defendants who are step brothers and sisters have no right over suit properties - On above contentions plaintiff sought for declaration of title and injunction –Held, Plaintiff whose attention was drawn that defendant had died leaving behind Class heirs chose file a reply memo stating that estate of is represented by other defendants - Unfortunately trial Court also accepted reply memo and proceeded with suit - Such proceeding by itself in my considered opinion will not have the effect of setting aside abatement that already occurred due to non of legal representatives of the deceased - On death thereafter suit stood abated as against - Any finding rendered in suit in absence of legal representatives of deceased cannot bind them This defect was not cured in the appeal also appeal was filed against defendants alone by showing as dead in cause Court therefore of the considered opinion that the entire proceedings that took place after abatement of suit on death are opposed law and they cannot be sustained - Senior Counsel appearing for respondent would however contend that decree is divisible and hence entire suit cannot be said to have abated Court unable to subscribe arguments Senior Counsel decree that sought for is one for declaration and injunction that too based on Will - If arguments of Senior Counsel are accepted it will create a situation where Will be valid in respect of appellants and invalid as far appellants concerned - Such a situation cannot be allowed resultant position that suit had abated as whole and the judgment of appellant Court rendered in absence of legal heirs of deceased a nullity – Appeal dismissed
JUDGMENT :
(Prayer: Second Appeal filed under Section 100 of C.P.C., to set aside the judgment and decree of the learned Sub Judge, Neyveli, dated 31.10.2012 in A.S.No.6 of 2012, reversing the judgment and decree of the learned District Munsif-cum-Judicial Magistrate, Neyveli, dated 10.04.2012 in O.S.No.13 of 2006.)
1. The defendants 2 to 5 and the legal representatives of the deceased 1st defendant in O.S.No.13 of 2006 have come up with this second appeal.
2. The suit in O.S.No.13 of 2006 was filed by the respondent herein seeking declaration of title and permanent injunction.
3. The case of the respondent is that the suit properties originally belonged to one Krishnasamy Padaiyatchi, son of Manikka Padaiyatchi through his first wife Muruvayee. After the death of Muruvayee, Manikka Padaiyatchi had married to one Dhanammal as his second wife and through her, he had begotten the defendants 1 to 5 in the suit. The Couple, namely Manikka Padaiyatchi and Murvayee have one more daughter viz., Pounambal, who is no more. The plaintiff is the brother's grand son of Manikka Padaiyatchi, namely Lakshmana Padaiyatchi. According to the plaintiff, since Dhanammal gave step motherly treatment to Krishnasamy Padaiyatchi, he was brought up by Lakshmana Padaiyachi. Thirumal, son of Lakshmana Padiayatchi and the father of the plaintiff had died at young age and therefore, Krishnasamy Padaiyachi has taken care of the family and he has also been shown as guardian of the plaintiff and other children of Thirumal. Therefore, out of love and affection he had towards the family of Thirumal, Krishnasamy Padaiyatchi executed a Will, bequeathing the properties to the plaintiff on 06.09.2004. Krishnasamy Padaiyatchi died on 17.09.2004. Therefore, according to the plaintiff, he had become the absolute owner of the properties as per the Will dated 06.09.2004 and the defendants who are the step brothers and sisters of Krishnasamy Padaiyatchi have no right over the suit properties. On the above contentions, the plaintiff sought for declaration of title and injunction.
4. The suit was resisted by the defendants contending that the Will set up by the plaintiff is not true. It was also claimed that Krishnasamy Padaiyatchi is not the absolute owner of the property in order to bequeath the properties to the plaintiff. Pending suit, the 1st defendant Ramajayam died on 17.06.2010. It is not in dispute that the counsel for the defendants filed a memo into the Court setting out the details of the legal representatives of the deceased 1st defendant.
5. The counsel for the plaintiff however filed a reply memo which reads as follows:
The suit is filed for declaration and injunction. The deceased Ramajayam was one of the daughter's of deceased Manicka Padaiyatchi through his 2nd wife. The other defendants are other sons and daughters. Since the other defendants are represent the heirs of Manicka Padayatchi's 2nd wife the plaintiff has not impleaded the heirs of deceased Ramajayam. The suit may go ahead with the other defendants.”
6. It appears that an application was taken to amend the cause title seeking to insert the word 'died' after the name of the deceased 1st defendant in the suit. The trial Court upon an analysis of the evidence on record, found that the Will dated 06.09.2004 propounded by the plaintiff is not true and valid. On the said finding, the trial Court concluded that the step brothers and sisters of deceased Krishnasamy Padaiyatchi, the defendants would be entitled to the properties. Based on the said finding, the trial Court dismissed the suit.
7. Aggrieved, an appeal was filed by the plaintiff against the defendants 2, 3, 4 and 5 alone. The 1st defendant was shown as dead in the cause title. The lower appellate Court however reversed the finding of the trial Court upheld the will and granted decree in f
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