Periakaliappa Nadar v. Peria Palaniappan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 23.01.2019 Coram The Hon'ble Mr. Justice C.V.KARTHIKEYAN S.A.No.45 of 2000 1.Peria Kaliappa Nadar (Deceased) 2.Kamaraj 3.K.Neethipathi 4.K.Nagarasu ... Appellants Appellants 3 & 4 brought on record as Legal representatives of the deceased 1st appellant vide order of court dated 12.01.2018 made in CMP.No.640 to 642 of 2008 in S.A.No.45 of 2000 (MDIJ)
Versus
1.Peria Palaniappan (Died) 2.Sadayan @ Palaniappan 3.Chinna Palaniappan S/O Peria Thillaiappan 4.Chinna Palaniappan S/o Chinna Thillaiappan 5.Kamatchi 6.Karthi 7.Moorthi 8.Kaliappan 9.T.K.Subramanian 10.Palanisamy 11.Thenpalani 12.Sellamuthu 13.Thambi @ Palaniappan 14.Krishnasamy 15.Ramasamy 16.Venkidusamy Gounder 17.Vadivel Shanmugam 18.Chandra 19.Lakshmi 20.Mariammal 21.Valliammal 22.Gopalan 23.Kumar
24.Sahadevan 25.Krishnamoorthy 26.Janaki 27.Annapoorani 28.Lokanayaki 29.Sivakalai 30.Bharathi 31.Thillaiammal 32.M.Ravanan 33.Tamilarasi Gandhi 34.M.Kalaivanan 35.M.Mahadevan 36.M.Manivannan 37.M.Kalaimathi 38.M.Kolandairaj 39.Dhanalakshmi 40.Minor.Sivanandan 41.Minor.Divya 42.Thillaiammal 43.lakshmi 44.Vasuki 45.Valliammal 46.Shanmugavel ... Respondents RR45 & 46 are brought on record as legal representatives of the deceased 1st respondent vide order of court dated 15.11.2002 made in CMP.Nos.9046 to 9048 of 2002 (MKVJ).
Prayer:The Second Appeal is filed under Section 100 of CPC, against the judgment and decree made in A.S.No.33 of 1995 dated 23.07.1998 on the file of the learned I Additional District Judge-cum-Chief Judicial Magistrate, Erode, confirming the judgment and decree made in O.S.No.144 of 1989 dated 23.09.1994 on the file of the learned Sub Judge, Dharapuram. For Appellants : No appearance For R2,R4,R9 & R15 : Mr.M.V.Krishnan For R14 & R17 : Mr.S.Jaganathan For R5,R11,R12,R19 : Mr.G.Thangavel For R2, RR23 to 25 : Not ready in notice R3,R6,R7,R9,R10,R13,R16 : No appearnace R18,R20,R21,R22,R26,R27 R28,R29,RR30 to R46
JUDGMENT
The first plaintiff in O.S.No.144 of 1989 on the file of the Sub Court, Dharapuram and the fifth appellant in A.S.No.33 of 1995 on the file of the learned I Additional District Judgecum-Chief Judicial Magistrate, Erode, are the appellants herein. By judgment dated 23.09.1994, the suit was partly decreed and a preliminary decree was passed granting 2/30th share to the plaintiffs. Challenging that preliminary decree, the plaintiffs filed A.S.No.33 of 1995. By judgment and decree dated 23.07.1998, the learned I Additional District Judge-cum-Chief Judicial Magistrate, dismissed the appeal and confirmed the preliminary decree of the Trial Court.
2.It must be mentioned that pending the first appeal, the second plaintiff Chinna Kaliappa Nadar died and his legal heirs were brought on record as appellants 3 to 6. Challenging the judgment and decree in A.S.No.33 of 1995, the first plaintiff Peria Kaliappa Nadar and the fifth appellant in the first appeal Kamaraj who was one of the legal heirs of the deceased second plaintiff have filed the present Second Appeal. 3.The Second Appeal has been filed in the year 1999 and numbered in the year 2000. It has not yet been admitted. Pending the Second Appeal, the first appellant Peria Kaliappa Nadar died and his legal heirs were brought on record as appellants 3 and 4. Similarly, the first respondent Peria Palaniappan also died but his legal heirs were already on record.
Pending the Second Appeal, it has been represented that the respondents 2, 3, 5, 7, 8, 9, 10, 11, 12, 13, 14, 19, 20, 30, 32, 33 and 36 have also died, apart from the 1st respondent. Steps have not been taken to bring on record their legal heirs. 4.The learned counsel for the appellants, relied on the Genealogy table which had been given in the judgment of the Trial Court. The suit property was the self-acquired property of Palaniammal, wife of Thenpalani Murugan. She died on 19.08.1953. She had executed a Will on 24.01.1927. She had five sons.
Kolathur Nadar, Periathillaiappa Nadar, Chinnathillaiappan, Chellappa Moopan and Patta Mooppanar. In the Will, she had stated that the 12 grand children born through her five sons would inherit the property in 5 equal shares and they should enjoy it along with their respective male sons. The dispute in the suit was with respect to the shares of the fifth son Patta Mooppanar. He had two wives Iyyammal and Parvathi. The plaintiffs Peria Kaliappa Nadar and Chinna Kaliappa Nadar were born through Iyyammal. They therefore claimed exclusive 1/5th share in the suit property. Defendants 13, 14, 15 and 18 were Palanisamy, Then Palani, Sellamuthu and Ramasamy. They
were the sons of Patta Moppanar, through his second wife Parvathi. Both the Courts below have granted an undivided 1/5th share to all the grand son of Patta Mooppanar born through both his wives and among the grand children, the plaintiffs were granted 2/30th share. This was because both the Courts below recognized that defendants 13, 14, 15 and 18 also have a share in the 1/5th undivided share allotted to the grand children of Patta Mooppanar. This is the only issue raised in the Second Appeal.
5.It is the grievance of the appellants that the sons of the second wife of Patta Mooppanar should not have been alloted any share since at the time the Will was executed, they were not born and also since when a codicil was written in 1942, though they were born, the testatrix had not included them as her grand sons.
6.Both the Courts below, on facts held that the plaintiffs are entitled to a preliminary decree of 2/30th share and have also held that the sons of the second wife of Patta Mooppanar are also entitled to claim a share equivalent to that of the sons born through the first wife. I find no infirmity in the finding. The suit property was the self acquired property of Palaniammal, and in her Will, she stated that the grand children born to her 5 sons would share the property in 5 equal parts. The illegitimate children would also be entitled to a share in the said property. I hold that no question of law arises for consideration in the Second Appeal. Accordingly, the Second Appeal is rejected. No costs.
Sd/- Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar smv/arb To 1.The learned I Additional District Judge cum-Chief Judicial Magistrate, Erode.
2.The learned Sub Judge, Dharapuram.
3.The Section Officer, VR Section, Madras High Court.
+1cc to M/S.G.Thangavel, advocate Sr.5277 S.A.No.45 of 2000 cnr[co] srg 15/03/2019