S.A.(MD)No.372 of 2014

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 16.08.2021

CORAM:

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

S.A.(MD)No.372 of 2014

1.Kasi Viswanathan

2.Subburaj

(Appellants 1 & 2 are declared as majors and

guardianship discharged vide order dated 02.04.2013

in M.P.(MD)No.2 of 2012)

... Appellants / Respondents 1 & 2 / Plaintiffs

-Vs-

1.Rajendran

2.Muthuchamy

... Respondents 1 & 2 / Appellants / Defendants

7 & 8

3.Krishnamaniam (Died)

4.Alagammal

5.Marimuthu

6.Kesavan

7.Murugan

8.Selvam ... Respondents 3-8 / Respondents 3-8 / Defendants

1-6

(Petitioners 1 and 2 are recorded as Lrs of the deceased R3 vide

order dated 02/04/2013 made in MP(MD) No.4 of 2012)

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

Code, against the judgment and decree of the lower appellate Court

dated 27.07.2010 made in A.S.No.368 of 2004 on the file of the

Additional Subordinate Judge, Dindigul, reversing the judgment and

decree of the trial Court dated 31.08.1999 made in O.S.No.165 of

1997 on the file of the II Additional District Musnif, Dindigul.

For Appellants : Mr.Vinoth

for Mr.R.Subramanian

For R1 & R2 : Mr.A.Hariharan

For R4 to R6 : Dismissed

For R7

: No appearance

For R8

: Mr.H.Lakshmi Shankar

1/12

https://hcservices.ecourts.gov.in/hcservices/

S.A.(MD)No.372 of 2014

JUDGMENT

The plaintiffs in O.S.No.165 of 1997 on the file of the II

Additional District Munsif, Dindigul, are the appellants in this

second appeal.

2. The said suit was for partition. It was filed on behalf of

the appellants by their mother Andiammal. The appellant's father

Krishnamaniam was shown as the first defendant. The case of the

appellants was that the suit properties are the ancestral properties

that belonged to the Hindu Joint family comprising the plaintiffs

and the first defendant. The plaintiff's mother Andiammal was the

fifth wife of the first defendant Krishnamaniam. The first

defendant had settled the other wives but left out the children born

through the fifth wife Andiammal The second defendant Alagammal was

the sister of the first defendant. The third defendant Marimuthu

had obtained power of attorney from the first and second defendants.

The plaintiffs alleged that D1 to D3 endeavored to encumber the suit

properties. The plaintiffs demanded partition and separate

possession of their 1/2 share in the suit items. During the

pendency of the suit, the first defendant, vide Ex.B1, had alienated

a few items in favour of D7 and D8 who are none other than the grand

children of the first defendant born through the first wife namely

Muthammal. The sixth defendant Selvam had purchased the suit items

2 to 5 under Ex.B2 and item No.1 under another document which was

not marked.

3.The defendants 7 and 8 filed written statement controverting

the plaint averments. They pointed out that the claim of the

plaintiffs that the suit properties are ancestral properties is

utterly false. They are self acquired properties of the first

defendant. The first defendant had incurred several debts and to

discharge the same, he had sold away the properties. The defendants

7 and 8 pointed out that some of the items belonging to the first

defendant were deliberately not included in the suit schedule.

Therefore, the suit was bad for partial partition. Some of the

purchasers of the properties of D1 have not been arrayed as

defendants. Therefore, the suit is bad for non-joinder of necessary

parties. They also contended that they had purchased certain items

that were included in the suit schedule under Ex.B1 for valuable

consideration. The first defendant had sold those items covered

under Ex.B1 to bona fide purchasers. He had obtained a

consideration of Rs.2,20,000/-. The plaintiffs did not choose to

impeach the said sale. Based on t