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S. Sivakumar v/s S. Aarthi

    CRP(MD)(PD). Nos. 2468 & 2469 of 2018 & CMP(MD) No. 10937 of 2018

    Decided On, 12 February 2019

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MRS. JUSTICE S. RAMATHILAGAM

    For the Petitioner: Isaac Mohanlal, B. Prahalad Ravi, Advocates. For the Respondent: S. Susanna Prabhu, Advocate.



Judgment Text

(Prayer: These Civil Revision Petitions have been filed under Article 227 of Constitution of India, against the order and decree dated 31.08.2018 passed in I.A.Nos.126 & 150 of 2018 in O.S.No.47 of 2017 on the file of the learned District Judge, Sivagangai.)

Commmon Order:

1. These Civil Revision Petitions have been preferred by the petitioner/defendant against the order passed in I.A.Nos.126 & 150 of 2018 in O.S.No.47 of 2017 on the file of the learned District Judge, Sivagangai.

2. The petitioner/defendant herein has contended in the said petitions that the suit has been filed by the respondent/plaintiff claiming share in the suit properties, which belong to the petitioner/defendant. Whereas the respondent/plaintiff has no such share in the suit properties. Further, he contended that the respondent/plaintiff has not impleaded other necessary parties in the suit properties, knowing

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fully that they have share in the suit properties in the capacity of co-sharers. The said fact of not adding the persons are also entitled in the suit properties are mentioned in the written statement. Further contention raised by the petitioner herein is that the trial court has not framed necessary issues and also necessary parties are not impleaded in the said suit preferred by the respondent/plaintiff.

3. The respondent/plaintiff in the counter statement has stated that the plaintiff alone is a legally entitled heir of Yashodha and the petitioner Sivakumar. The same was also admitted by the petitioner herein. The person namely Parimala is not the legally wedded wife and the persons Nirupa and Nishanth are not necessary parties and they are not entitled for any right in the co-parcenary properties. Hence, the prayer made by the petitioner/defendant for impleading the necessary parties claiming share in the co-parcenary properties are very much denied by the respondent/plaintiff.

4. The trial court after analysing the facts and details placed before the same and analysing the rights of the parties, has given a finding that regarding the facts mentioned by the petitioner/defendant that the trial Court has not framed necessary issues and also necessary parties are not impleaded, it has to be discussed elaborately and has given a finding that whether the procedure followed in Order VII Rule 1 has been properly observed or not and the trial Court has discussed the following facts:

“Whether the plaintiff has fulfilled the following requirements mentioned in Order 7 Rule 1?

a) that the suit should contain the name of the Court in which the suit is bought

b) the name and description of the place of residence of the plaintiff

c) the name of the description of the place and residence of the defendant

d) Where the plaintiff is a minor or of unsound mind?

e) the facts constituting the cause of action and when it arose

f) the facts showing that this Court had jurisdiction

g) the relief claimed by the plaintiff

h) where the plaintiff has allowed a set off or relinquishes a portion of his claim the amount. So set off and relinquished

i) A statement of the value of the subject matter of the suit and for the purpose of jurisdiction the court fee payable

5. The trial Court found that the suit was filed by complying the above said requirements and the same was also taken on file. The contention raised by the petitioner herein that first of all whether the plaintiff has right in the suit property is under dispute and issues framed against the petitioner herein is also not proper. After perusing the oral and documentary evidence, the trial passed an following order:

“TAMIL”

6. Hence, the trial Court concluded that the prayer sought for dismissal of the suit is not maintainable in the absence of impleading necessary parties and dismissed the said petitions filed by the petitioner/defendant. Aggrieved against the said order, these Civil Revision Petitions have been preferred.

7. The learned counsel for the petitioner has relied upon the Judgment of this Court reported in 1998(II) CTC 403 (Sabasthi Nadar Vs.Savurimuthu Nadar and another) in which, paragraph 14 reads as follows:

“14. The position which emerge as a result of the above analysis, in the context of the present case is that the plaintiff having deliberately suppressed the existence of certain other sharers and not having impleaded them as party and the Genealogy having been proved to be in correct, the suit deserves to be dismissed. Even at present no steps were taken by the plaintiff to implead all the necessary parties who have been left out and the Court cannot take any initiative on its own under Order I Rule 10(2) of the Code of Civil Procedure in the absence of proper particulars relating to all parties who are left out”.

8. He has relied upon the another Judgment of this Court reported in 1972 (2) MLJ 590 (I.Panchapakesan and others Vs.Peria Thambi Naicker and others ) in which, it has held that “ No doubt, Order I, Rule 9 Civiil Procedure Code provides that no suit shall be defeated by reason of the mis-joinder or non-joinder of parties...” and also held that “ even with regard to the plea of injunction which the plaintiffs have asked for, all the persons interested should be made parties. Even with regard to the limited rights of joint possession, all the persons interested should be made parties, for it may be open to those who are not made parties to show that the plaintiffs have no subsisting title” and also relied upon the following Judgments of this Court:

(i) A.S.No.441 of 2002(Meenambal& others Vs.Shantha & others)

(ii) S.A.No.329 of 209 reported in 2009(3) CTC 760( Balamani & another Vs.S.Balasundaram).

9. Per contra, the learned counsel for the respondent has relied upon the Judgment of the Hon'ble Supreme Court in the case of Revanasiddappa & another Vs.Mallikarjun & others, in which, paragraph -35 reads as follows:

“35. In our view, in the case of joint family property such children will be entitled only to a share in their parents' property but they cannot claim it on their own right. Logically, on the partition of an ancestral property, the property failing in the share of the parents of such children is regarded as their self acquired and absolute property. In view of the amendment we see no reason why such children will have no share in such property since such children are equated under the amended law with legitimate off spring of valid marriage. The only limitation even after the amendment seems to be that during the life time of their parents such children cannot ask for partition but they can exercise this right only after the death of their parents”.

10. The learned counsel has also relied upon another Judgment of this Court in S.A.No.725 of 2001 ( Balakrishnan & others Vs.Selvi & others), in which, paragraph-23(d) and 79 read as follows:

“23(d). Further it is also to be pointed out that at the time of filing of the suit, the first defendant was alive. So, whatever right the illegitimate child can claim only be the property of the parent and nothing more. When father is alive, the question of inheritance does not arise.

79. In view of the legal fiction contained in Section 16, the illegitimate children, for all practical purpose, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents”

11. Further, in support of her contention, the learned counsel for the respondent has relied upon the Judgment of the Hon'ble Supreme Court reported in 2018(2) Crimes 225(SC) (Asian Resurfacing of Road Agency Pvt.Ltd. & another Vs.Central Bureau of Investigation)

12. The learned counsel for the respondent contended that these issues can be very much tried during the time of trial and filing the affidavit at this stage and seeking for dismissal of the said suit is not maintainable. The persons to be impleaded their rights and interest in the said properties can be very well tried and discussed only after commencement of the trial. It is also observed from the respondent that in the suit filed by the respondent/plaintiff, issues have been framed and the case stands in the stage of trial. It is the contention raised by the respondent that at any time, the necessary party or parties who have right over the suit properties can be impleaded and the petitioner filed the petition immediately after framing the issues. The trial Court itself has also given a finding in the said interlocutory applications, in which it has held that "TAMIL”

13. In view of the above, this Court finds that the order passed by the trial court is very reasonable and this Court does not warrant any interference of the order passed by the trial Court and there is no merit in these Civil Revision Petitions.

14. In the result, these Civil Revisions Petitions are dismissed. No Costs. Consequently, the connected miscellaneous petition is closed
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