P.S.Varadan v. Srinivasan P.Kannan
THE HIGH COURT OF JUDICATURE AT MADRAS (ORDINARY ORIGINAL CIVIL JURISDICTION) TUESDAY, THE 5TH DAY OF FEBRUARY 2019 THE HON'BLE MR. JUSTICE R.SUBRAMANIAM A. No.8107 of 2017 in C.S.No.86 of 2014 CS.No.86 of 2014:
Srinivasan P.Kannan S/o.Late P.S.Kannan, Block 419, # 07-211 Woodlands Street 41 Singapore-730 419.
...Plaintiff -Versus1.P.S.Varadan S/o.Late P.Srinivasan Chennai-14.
2.Mr.Murali, Chennai-600 014.
3.Mrs.K.Jalaja W/o.Late P.S.Kannan, Plot No.66, Door No.9, Mahalakshmi Nagar, 1st Main Road, Adambakkam, Chennai-88.
4.Ms.K.Jayanthi D/o.Late P.S.Kannan Plot No.66, Door No.9, Mahalakshmi Nagar, 1st Main Road, Adambakkam, Chennai-88.
5.Mrs.Kayani Ammal (deceased) W/o.Krishnan Flat No.102, Pavithra Residency Street No.9, Vivekanandapuram Sainipuri, Secundrabad - 500 094.
6.Mrs.Kasthuri Rangan No.453/9 M.G.Nagar, Phase I Plot No.27A Urapakam West Rajini Mahal Kalyana Mandapam Entrance Gate 603 211.
7.Mrs.Mythili No.453/9, M.G.Nagar Phase I, Plot No.27A Urapakam West Rajini Mahal Kalyana Mandapam Entrance Gate 603 211.
8.Mr.R.Raman No.3/1/65, J.J.Nagar West Mogappair West Chennai - 600 037.
The defendants 5 to 8 impleaded as for orders dated 17.07.2017 passed in A.No.505 of 2017 in C.S.No.86 of 2014.
9.Mr.K.Krishnan 10.Mr.K.Badri 11.Mrs.K.Chitra Defendants 9 to 11 at Plot No.102 Pavithra Residency, Street No.9, Vivekanandapuram Sainikpuri, Secundrabad - 500 094.
(Defendants 9 to 11 brought on record as legal heir's of the deceased 5th defendant as per order dated 31.08.2018 in A.Nos.3908 & 3909 of 2018 and time extended as per order dated : 17.09.2018.) ...Defendants A.No.8107 of 2017:
1.P.S.Varadan S/o.Late P.Srinivasan Chennai-14.
...Applicant/Defendant
1.Srinivasan P.Kannan S/o.Late P.S.Kannan, Block 419, # 07-211 Woodlands Street 41 Singapore-730 419.
...Respondent/Plaintiff
2.Mr.Murali, Chennai-600 014.
3.Mrs.K.Jalaja W/o.Late P.S.Kannan, Plot No.66, Door No.9, Mahalakshmi Nagar, 1st Main Road, Adambakkam, Chennai-88.
4.Ms.K.Jayanthi D/o.Late P.S.Kannan Plot No.66, Door No.9, Mahalakshmi Nagar, 1st Main Road, Adambakkam, Chennai-88.
5.Mrs.Kayani Ammal (deceased) W/o.Krishnan Flat No.102, Pavithra Residency Street No.9, Vivekanandapuram Sainipuri, Secundrabad - 500 094.
6.Mrs.Kasthuri Rangan No.453/9 M.G.Nagar, Phase I Plot No.27A Urapakam West Rajini Mahal Kalyana Mandapam Entrance Gate 603 211.
7.Mrs.Mythili No.453/9, M.G.Nagar Phase I, Plot No.27A Urapakam West Rajini Mahal Kalyana Mandapam Entrance Gate 603 211.
8.Mr.R.Raman No.3/1/65, J.J.Nagar West Mogappair West Chennai - 600 037.
9.Mr.K.Krishnan 10.Mr.K.Badri 11.Mrs.K.Chitra Respondents 9 to 11 at Plot No.102 Pavithra Residency, Street No.9, Vivekanandapuram,Sainikpuri, Secundrabad - 500 094. (Respondents 9 to 11 brought are brought on record on legal heir's of the deceased 5th defendant as per order dated 31.08.2018 in A.Nos.3908 & 3909 of 2018 and time extended as per order dated : 17.09.2018.)
...Respondents/Defendants
Application praying that this Hon'ble Court be pleased to reject the above plaint as not maintainable. This application coming on this day before this court for hearing, the court made the following order:
The 1st defendant in C.S.No.86 of 2014, which is a suit for partition, has filed this application seeking rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure.
2.According to the plaintiff, the suit properties were ancestral joint family properties they having been alloted to his grandfather Mr.Srinivasan in a partition between him and his brothers. The learned Counsel for the plaintiff would further contend that the properties purchased by his grandfather Mr.Srinivasan after the said
partition were purchased out of the income from the joint family properties and therefore, they should also be treated as joint family properties. On the strength of the above contention, the plaintiff who is the grandson of Mr.Srinivasan through one Kannan, who died in 1978 would seek 1/3rd share of the suit properties. 3.The suit is being resisted by the 1st defendant contending that there was a partition between the heirs of Mr.Srinivasan even before the death of Mr.Kannan and Mr.Kannan, himself have sold some of the properties alloted to him in the said partition. It is also claimed that the plaintiff who was a minor was also a party to the sale deed dated 02.08.1977, wherein the said Kannan as a guardian of the plaintiff has sold one item of the property to one Mythili under a registered sale deed. Therefore, according to the 1st defendant/applicant, the properties having been partitioned already, the plaint has to be rejected.
4.I am afraid, such a contention cannot be countenanced for the simple reason that in deciding an application under Order VII Rule 11 only the contents of the plaint must be looked into. The Court cannot indulge in a roving enquiry as to the availability of properties based on the documents that has been produced by the
defendants. Such an approach is foreign to the scope of Order VII Rule 11 of CPC. If it is the case of the 1st defendant that the property has already been partitioned, it is open to him to prove the said partition in the manner known to law by producing evidence at trial. If this application is to be decided in the manner suggested by the learned counsel for the applicant it would involve assessing of documentary evidence which cannot be done while considering the application under Order VII Rule 11 of the Code of Civil Procedure. Hence, this application is dismissed.
Sd/.R.S.M.J.
05.02.2019 //Certified to be a true copy// Dated this the th day of 2019. DL/06.02.2019 COURT OFFICER From 25.09.2008 the Registry is issuing certified copies of the Order/Judgment Decree in this format.