Amala v. Ronickam

JUDGMENT The suit in O.S.No.8 of 2005 is filed by the plaintiff namely, Amala for partition claiming 1/9th share out of 2/3 be partitioned by metes and bounds and allotted.

¶2The first defendant is the mother of plaintiff and defendants 2 to

¶9The plaintiff and the defendants 2 to 9 are siblings. The first defendant has three daughters and six sons. The plaintiff is one among the daughters of the first defendant. The defendants 2 and 3 are other daughters of the first defendant and the defendants 4 to 9 are sons of the first defendant. For the sake of convenience, the rank of the parties shall be referred as plaintiff and defendants as stated in suit.

¶3The suit schedule properties are purchased by the plaintiff's father namely, Ambrose, son of Arulapan and he died on 27.03.2001 leaving behind his wife and children as legal heirs. Since some of the siblings were residing separately, taking advantage of the same, the fifth defendant who was staying with the first defendant, started creating documents in his name and his brothers i.e. defendants 6 to 9 without including his sisters and fourth defendant. The plaintiff has narrated the facts how the fifth defendant had created the documents. The fifth defendant involved in execution of Will dated, 26.08.1985 and other two wills dated 15.12.1993 and 05.12.1996. Based on the said wills, the beneficiary of the Wills (the other siblings of the fifth respondent) are claiming right over certain properties.

¶4The contention of the plaintiff is that the said Will was not probated, but the siblings have taken over possession of the said property. Hence, the plaintiff has filed a suit for partition. The suit was decreed regarding six properties by granting 1/9th share to the plaintiff. Aggrieved over the same, the plaintiff has preferred the first appeal. In the first appeal, the parties tried to compromise the issue and the plaintiff has also agreed for the said compromise, which is evident from the judgment of the First Appellate Court. But unfortunately, the parties could not record the compromise, since at the final stage, the plaintiff was not inclined to compromise the issue. Further the plaintiff has changed the counsel, which has also been recorded in the A.S. Judgment and the same is extracted hereunder: nkw;go

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,e;j nky;KiwaPl;lhsuhdth; jhd; U:.18>000/-j;ij jdf;Fr; nruntz;oa gq;fpw;fhf nkw;go 4 nghplkpUe;J bgw;Wf; bfhs;tjhft[k;> tHf;Fr; brhj;Jf;fs; vjpYk; jdf;F chpikapy;iy vdt[k; Fwpg;g[ bra;jpUf;fpwhh;. ,e;jf; Fwpg;ghiziag; gjptjw;F Kd;g[ thjp jdJ tHf;fwpQiu khw;wp K:j;j tHf;fwpQh; xUtiu jd; rhh;ghf epakpj;jpUe;jhh;. nkw;go K:j;j tHf;fwpQUk; ,e;jr rkhjhd cld;gof;ifapd; \uj;Jf;fisj; bjhpe;Jbfhz;L> jhth brhj;Jf;fis jhDk; ghh;j;jgpd;g[ ,e;jf; Fwpg;ghizia gjpt[ bra;a[k;go ntz;Lnfhs; tpLj;jjd; mog;gilapy; ,e;j ePjpkd;wk; mtUf;F nghjpa tha;g;g[fs; mspj;jJ. mjd;gpd;dh; mth; ,e;j tHf;fpd; jhd; thjpl tpUk;g[tjhf bjhptpj;jhh;. ,e;jf; Fwpg;ghiz ,Ujug;g[ xg;g[jypd;nghpy; vGjg;gl;lJ vd;gij mth; xg;g[f;bfhz;lhh;. The contention of the plaintiff is that the Will was not probated and therefore she is not inclined to compromise the issue.

¶5The contention of the plaintiff that without conducting enquiry on the compromise, a decree cannot be granted and the said plea is absolutely right. Further the plaintiff contended that the Will ought to be probated. Accepting the said contentions of the plaintiffs, this Court is of the considered opinion that when the compromise has not been accepted by the plaintiff, then the judgment cannot be rendered, as if the plaintiff has compromised the issue. Therefore, this Court is inclined to set aside the judgment and decree rendered by the First Appellate Court and accordingly set aside. The case is remitted back to the First Appellate Court for hearing the case on merits.

¶6Therefore, the Second Appeal is allowed by setting aside the judgment and decree of the First Appellate Court and the matter is remitted back to the first appellate Court for hearing the case.

¶7In view of the above, the Second Appeal stands allowed as stated supra. No costs. Consequently, connected miscellaneous petition is closed.

01.11.2023 NCC : Yes / No Index : Yes / No Internet : Yes / No Nsr TO:

1.The Principal District and Session Judge, Kanyakumari at Nagercoil

2.The Subordinate Judge, Padmanabhapuram.

3.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

S.SRIMATHY, J.

Nsr Dated:

01.11.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01.11.2023 CORAM: THE HONOURABLE MRS.JUSTICE S.SRIMATHY and C.M.P.(MD)No.6574 of 2019 Amala ... Appellant /Vs./ 1.Ronickam 2.Mariammal 3.Anitha 4.Alexander 5.Aruldhas 6.Augustin 7.Alloysious 8.Anto Marlin ...Respondents P RAYER : Second Appeal filed under Section 100 of the Civil Procedure Code against the Judgment and Decree dated 26.11.2018 rendered in A.S.No.1 of 2008, on the file of the Principal District and Sessions Judge, Kanyakumari at Nagercoil, partly allowing the decree and the judgment dated 29.06.2007 rendered in O.S.No.8 of 2005, on the file of the Subordinate Judge, Padmanabhapuram, by allowing this Second Appeal. For Appellant : M/s.P.Jessi Jeeva Priya For Respondents : Mr.R.Devaraj