Advocates:
['M/S N VALLINAYAGAM', '', 'M DIVAKARAN', 'M/S M PONNIAH', '', 'G RAJASEKARAN', 'FOR RR TO IN SR STAGE']

S.A(MD)No.423 of 2020

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

RESERVED ON : 08.03.2022

DELIVERED ON : 11.03.2022

CORAM:

THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR

S.A(MD)No.423 of 2020

1.Kumarayee Ammal

2.Irulayee

3.Mahalingam

4.Selvi

5.Boominathan

6.Panchavarnam

7.Alagammal

... Appellants/Appellants/Plaintiffs

Vs

1.Sakkaiah

2.Lingammal

3.Valli

4.Velu

5.Kumaresan

... Respondents/Respondents/Defendants

PRAYER: Second Appeal is filed under Section 100 of the Civil

Procedure Code, against the judgment and decree passed in A.S.No.50

of 2018, dated 28.02.2019 on the file of the Subordinate Judge,

Thirumangalam, confirming the judgment and decree passed in

O.S.No.501 of 2007, dated 20.02.2018 on the file of the District

Munsif, Thirumangalam.

For Appellants

: Mr.N.Vallinayagam

For Respondents

: Mr.M.Ponniah

JUDGMENT

The plaintiffs are the appellants herein.

2. The plaintiffs filed O.S.No.501 of 2007 before the District

Munsif, Thirumangalam for partition claiming 3/4th share over the

suit schedule properties and for permanent injunction restraining

the defendants not to alienate the suit properties to third parties

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S.A(MD)No.423 of 2020

before partition is effected. The plaintiffs further prayed for a

permanent injunction restraining the defendants from erasing the

physical features of the suit schedule properties. The suit was

dismissed by the trial Court. The plaintiffs filed A.S.No.50 of 2018

before the Sub Court, Thirumangalam. The learned Subordinate Judge

was pleased to dismiss the appeal. As against the concurrent

findings, the plaintiffs filed the present Second Appeal.

3. The plaintiffs had contended that suit schedule properties

originally belonged to one Kantha Thevar ancestrally and he died

leaving behind his wife Kumarayee Ammal and four daughters by name,

Kumarayee Ammal, Ramayee Ammal, Alagammal and Meenakshi Ammal. The

legal heirs of Meenakshi Ammal were impleaded as D1 to D3. One of

the daughters of Kantha Thevar, Kumarayee Ammal is the plaintiff.

The legal heirs of the other daughter, Ramayee Ammal are plaintiffs

2 to 6. The seventh plaintiff is one of the daughters of the Kantha

Thevar. Meenakshi Ammal had a son by name, Bose whose legal heirs

are D4 and D5. According to the plaintiffs, they are entitled to

3/4th share in the suit schedule properties.

4. The first defendant filed a written statement disputing the

entitlement of the plaintiff to claim partition. In paragraph No.6

of the said written statement, the first defendant has pointed out

that one of the legal heirs of Meenakshi Ammal namely, Sakkarai has

not been impleaded. That apart, all the legal heirs of the deceased

son of Meenakshi Ammal have not been impleaded in the present suit.

The non impleaded parties are also entitled to a share in the suit

schedule properties. Hence, the suit is bad for non-joinder of

necessary parties.

5. The first defendant also filed an additional written

statement contending that his mother Meenakshi Ammal had executed

several settlement deeds in his favour, in which S.No.79/2C1 has

been dealt with by the said Meenakshi Ammal as her absolute

property. In paragraph No.15 of additional written statement, the

first defendant has contended that the plaintiff has wantonly

omitted S.No.79/2C1 in the suit schedule properties and hence, the

suit is bad for partial partition.

6. The plaintiffs filed a reply statement. In paragraph No.5 of

the reply statement, the plaintiff had contended that all the

necessary parties have been impleaded and the suit is not bad for

non-joinder of necessary parties. The plaintiffs also disputed the

fact that the suit is bad for partial partition.

7. The trial Court after analysis of the oral and documentary

evidence came to a conclusion that the plaintiffs have not impleaded

the sons of Kantha Thevar who were begotten