Rangabashyam v. Gandhiammal @ Gandhi

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 23.01.2023

CORAM

THE HONOURABLE Ms. JUSTICE P.T. ASHA and M.P.No.1 to 3 of 2010

1. Rangabashyam

2. Thirumal ... Appellants Vs.

1.Gandiammal @ Gandhi 2.Latha 3.Gnanam Udaiyar ... Respondents PRAYER: Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgement and decree of the Principal Subordinate Judge, Villupuram A.S.No.6/2005 dated 31.08.2005, modifying the Judgement and Decree of the II Additional District Munsif, Thirukoilur in OS.No.388 of 2003 dated 12.10.2004.

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For Appellant : Mr. J.Srinivasa Mohan For Respondents : Mr.R.Balakrishnan [R.1] : R.2 & R.3 [Died vide memo dated 23.08.2011]

JUDGMENT

On the last occasion since steps were not taken to bring on record the legal representatives of the appellants, the Second Appeal was dismissed as abated. Thereafter, it came to notice of the Court that the legal representatives of the 1st appellant is already on record as the 4th and the 5th respondents who are the children of the 2nd respondent and the daughter of the 1st respondent. Therefore, the Second Appeal could not be dismissed as abated, consequently, the matter was listed today under the caption "for clarification".

2. It is informed by the learned counsel for the appellant that the suit OS.No.388 of 2003 had been filed to declare the settlement deed executed by the 1st appellant in favour of his wife, the 1st respondent as null and void and for a consequential injunction. The suit was decreed and in appeal in 2/5

A.S.No.6 of 2005, the Principal Sub-Judge, Villipuram has reversed the judgment and decree of the Trial Court. Therefore, the validity of the settlement deed has been upheld by the 1st Appellate Court.

3. Now, the 1st appellant is no more, his son who is the 2nd appellant is no more and the 1st respondent who is the wife of the 1st appellant and mother of the 2nd appellant and the 2nd respondent is also no more. Likewise, the 2nd respondent is also no more. However, her husband and children are arrayed as respondents 3 to 5 in the appeal. Apart from the said 2nd respondent, the 1st appellant had another daughter by name Kala.

4. The learned counsel for the appellant would submit that he has received oral instruction that the said Kala has purchased the property which has been settled on the 1st respondent and subsequently settled by the 1st respondent on the 2nd respondent. By this purchase, the other daughter of the 1st appellant has recognized the right of the deceased 2nd respondent under the settlement deed executed by her mother, the 1st respondent. 3/5

4. Both the counsels would submit that they have no instruction from their party despite the several communication that they have addressed to them. Though the respondents 4 and 5 are on record and the appeal has not abated, however, all the legal heirs of the 1st appellant and the 2nd appellant have not been brought on record to date. Therefore, taking into account the subsequent purchase by the other daughter of the 1st respondent nothing survives for consideration in the above appeal. Therefore, the above Second Appeal is dismissed for non-prosecution. No costs. Consequently, the connected Miscellaneous Petitions are closed. 23.01.2023 Index : Yes/No Internet : Yes/No shr To 1.The Principal Subordinate Judge, Villupuram. 2.The II Additional District Munsif, Thirukoilur. 4/5

P.T. ASHA, J, shr and M.P.No.1 to 3 of 2010 23.01.2023 5/5