Audichan Nadar (Died) Govindan (Died) 1.Rosammal v. Ramachandran Nayar,

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Civil Appellate Jurisdiction ) Wednesday, the Sixteenth day of October Two Thousand and Twenty Four PRESENT The Hon`ble Mrs.Justice V.BHAVANI SUBBAROYAN C.M.P(MD)Nos.8307 & 8309 of 2024 in S.A(MD)Nos.1311 & 1310 of 2006 AUDICHAN NADAR (D40-DIED) GOVINDAN (D102-DIED) 1 ROSAMMAL, 2 G.JUSTUS, 3 G.SUJI 4 G.SUNI 5 G.ANI 6 G.SIBIHA 7 SELVARAJ, PONNUMONY NADAR (D41-DIED) RAJAMMA (D105-DIED) 8 RAMACHANDRAN,(D106) 1/21

9 NATARAJAN, (D107) 10 KUMARAN (D108) 11 VIJAYAN (D109) ATCHUTHAN (D43-DIED) THANKAMMA (D110-DIED) 12 SATHIARAJ (D-111) 13 PAULRAJ (D-112) PONNAMPERUMAL (D42-DIED) KUNCHUKRISHNAN(DIED) 14 A.CHELLAPPAN 15 P.RETNABAI 16 PONNESAM 17 K.SANTHOSE, 18 K.KAVITHA ... PETITIONERS/ PROPOSED RESPONDENTS 97 TO 114 IN CMP(MD).8307/2024 ... PETITIONERS/ PROPOSED RESPONDENTS 98 TO 115 IN CMP(MD).8309/2024 Vs 1 RAMACHANDRAN NAYAR, ... 1st RESPONDENT/APPELLANT 2/21

2 SIVADASAN NAYAR (DIED) 3 MADHAVAN NAYAR(DIED) 4 APPAVU 5 VELAYUDHAM NADAR 6 KOLAPPAN NADAR 7 HARIYANDRAN NADAR, 8 GNANACHANDRAN NADAR, 9 PONNU PILLAI NADAR, 10 MUTHUSWAMY NADAR, 11 MUTHAIYAN 12 KESAVAN 13 BHARATHI PILLAI, 14 P.R.SANADHANAN NAYAR, 15 E.R.KUNJUKRISHNAN NAYAR, 16 E.R.DHAMODHARAN NAYAR, 17 BHAGAVATHY 18 PONNAMMA PILLAI 19 CHELLAMMA PILLAI 20 GOPINATHAN NAYAR 3/21

21 SRI KANDAN NAYAR 22 RAMANI 23 LEELA PAI AMMA 24 INDIRA AMMA 25 MADHAVAN THAMBI 26 PONNAMMA PILLAI THANKACHI 27 PRASANNA THANKACHI 28 BALAMMA 29 CHELLAIYAN 30 SELVAMANI 31 KOCHAN 32 SANKARAN NADAR, 33 MUTHAIYAN, 34 CELLAN 35 RAGHAVAN, 36 SOMAN, 37 PONNUMANI NADAR, 38 MUTHUSWMY NADAR, 39 PONNAMPEUMAL NADAR, 4/21

40 PONNAIYAN 41 RAMASWAMY, 42 CHINNA MANICKAM NADAR, 43 MUTHAIYAN, 44 MADHAVAN THAMBI, 45 CHELLAIYAN NADAR 46 REVATHI NADATHI 47 MUTHUSAMY, 48 KOCHU KUNCHAN 49 SOMASEKARAN NAYAR (DIED) 50 NADANKANNU NADAR, 51 MAHESWARI AMMA 52 NIRMALA 53 JANAKI, 54 VIJAYAN 55 JEYAKUMAR, 56 NESAM 57 SARASWATHI 58 KRISHNASHWARI 5/21

59 PALRAJ 60 PADMANABAN NADAR, 61 VISALATCHI AMMA 62 CHANDRIKA PAI, 63 BALAIYAN, 64 PONNUMUTHU 65 SELVAMANI, 66 CHITRA 67 DHARMARAKSHI 68 MANI, 69 CHELLADURAI 70 SUNDARAM 71 SALAMMA 72 NEELU 73 SIVARAYAN, 74 RAMAKRISHNAN 75 AYYAPPAN 76 JANAKI 77 RAJAN 6/21

78 LEELA 79 KAVIRAJAN 80 SRINIVASAN 81 DHARMARAKSHI 82 PALRAJ 83 UMADEVI 84 VINAYA CHANDRAN NAYAR, 85 THINAYA CHANDRAN NAYAR, 86 VAHITHA DEVI 87 P.MAHESWARI AMMAL, 88 M.S.KUMARI C.KALA 89 KIREESH NAYAR, 90 M.S.KUMARI C.LATHA 91 KUNJILAKSHMI AMMA, 92 VIMALAKUMARI 93 SUNANTHAKUMARI 94 KARUNAKUMAR 95 SURESH BABU 7/21

96 KUMARI JEYA, (RESPONDENTS Nos.4 TO 44, 50 TO 82 ARE EXONERATED IN THE LOWER COURT HENCE RESPONDENTS 4 TO 44, 50 TO 82 ARE DISPENSED WITH) ... RESPONDENTS/RESPONDENTS IN CMP(MD).8307/2024 1 SOMASEKARAN NAYAR (DIED) ... 1st RESPONDENT/APPELLANT 2 MAHESWARI AMMAL, 3 KUMARI C.KALA 4 M.S.GREESAN NAIR, 5 M.S.KUMARI C.LATHA ... RESPONDENTS 2 TO 5/ LEGAL HEIRS OF 1st RESPONDENT 6 SIVADASAN NAYAR (DIED) 7 MADHAVAN NAYAR (DIED) 8 APPAVU 9 VELAYUDHAM NADAR 10 KOLAPPAN NADAR 11 HARIYANDRAN NADAR, 12 GNANACHANDRAN NADAR, 13 PONNU PILLAI NADAR, 14 MUTHUSWAMY NADAR, 8/21

15 MUTHAIYAN 16 SUNDARAM 17 GANESAN 18 KESAVAN 19 BHARATHI PILLAI, 20 P.R.SANADHANAN NAYAR, 21 E.R.KUNJUKRISHNAN NAYAR, 22 E.R.DHAMODHARAN NAYAR, 23 BHAGAVATHY 24 PONNAMMA PILLAI 25 CHELLAMMA PILLAI 26 GOPINATHAN NAYAR 27 SRI KANDAN NAYAR 28 RAMANI 29 LEELA PAI AMMA 30 INDIRA AMMA 31 MADHAVAN THAMBI 32 PONNAMMA PILLAI THANKACHI 33 PRASANNA THANKACHI 9/21

34 BALAMMA 35 CELLAN 36 SELVAMANI 37 KOCHAN 38 SANKARAN NADAR, 39 MUTHAIYAN, 40 CHELLAIYAN 41 RAGHAVAN, 42 SOMAN, 43 PONNUMANI NADAR, 44 MUTHUSWMY NADAR, 45 PONNAMPEUMAL NADAR, 46 PONNAIYAN 47 RAMASWAMY, 48 CHINNA MANICKAM NADAR, 49 MUTHAIYAN, 50 MADHAVAN THAMBI, 51 CHELLAIYAN NADAR 52 REVATHI NADATHI 10/21

53 MUTHUSWAMY, 54 KOCHU KUNCHAN 55 RAMACHANDRAN NAYAR, 56 NADANKANNU NADAR, 57 MAHESWARI AMMA 58 NIRMALA 59 JANAKI, 60 VIJAYAN 61 JEYAKUMAR, 62 NESAM 63 SARASWATHI 64 KRISHNASHWARI 65 PALRAJ 66 PADMANABAN NAYAR, 67 VISALATCHI AMMA 68 CHANDRIKA PAI, 69 BALAIYAN, 70 PONNUMUTHU 71 SELVAMANI, 11/21

72 CHITRA 73 DHARMARAKSHI 74 MERLIN ROY 75 MANI, 76 CHELLADURAI 77 SUNDARAM 78 NEELU 79 SIVARAYAN, 80 RAMAKRISHNAN 81 AYYAPPAN 82 JANAKI 83 RAJAN 84 KAVIRAJAN 85 SRINIVASAN 86 DHARMARAKSHI 87 PALRAJ 88 UMADEVI 89 VINAYA CHANDRAN NAYAR, 90 THINAYA CHANDRAN NAYAR, 12/21

91 VAHITHA DEVI 92 KUNJILAKSHMI AMMA, 93 VIMALAKUMARI 94 SUNATHAKUMARI 95 KARUNA KUMAR 96 SURESH BABU 97 KUMARI JEYA, ... RESPONDENTS/RESPONDENTS IN CMP(MD).8309/2024 Prayer in CMP(MD). 8307/ 2024 :

Civil Miscellaneous Petition filed praying that in the circumstances stated therein and in the affidavit filed therewith the High Court may be pleased to Implead the Petitioners 1 to 18 as Repsondents 96 to 113 in the above Second Appeal in SA PRAYER IN SA(MD).1311/2006:

To prefer this Memorandum of Second Appeal against the Judgment and Decree passed in A.S.No.93 of 2004 on the file of the Sub Court, Kuzhithurai dated 27.04.2006 as reversing the Judgment and Decree passed in IA.No.55 of 2004 in OS.No.60 of 1965 on the file of 1st Additional District Munsif, Kuzhithurai dated 09.08.2004.

Prayer in CMP(MD). 8309/ 2024 :

To Implead the Petitioners 1 to 18 as Repsondents 93 to 111 in the above Second Appeal in SA No.1310 of 2006 and to pass such further or other order as this Honourable Court deems fit and proper in the facts and circumstances of the case and thus render justice.

PRAYER IN SA(MD).1310/2006:

To prefer this Memorandum of Second Appeal against the Judgment and Decree passed in A.S.No.91 of 2004 on the file of the Sub Court, Kuzhithurai dated 27.04.2006 as reversing the Judgment and Decree passed in IA.No.56 of 2004 in 13/21

OS.No.60 of 1965 on the file of 1st Additional District Munsif, Kuzhithurai dated 09.08.2004.

ORDER : This Civil Miscellaneous Petition coming up for orders on this day, upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of Mr.R.NANDAKUMAR, Advocate for the petitioners in both Petitions, the court made the following order:- C.M.P(MD)No.8307 of 2024 is filed to implead the petitioners 1 to 18 as respondents 96 to 113 in S.A(MD)No.1311 of 2006 and C.M.P(MD)No.8309 of 2024 is filed to implead the petitioners 1 to 18 as respondents 93 to 111 in S.A(MD)No.1310 of 2006.

2.The 10th petitioner herein-Kumaran has filed an affidavit on his behalf and on behalf of the proposed respondents and stated that the suit in O.S.No.60 of 1965 on the file of the District Munsif Court, Kuzhithurai filed by Samikutty Nadar and 14 others as against the predecessors-in-title and others for partition. According to them, their grandfather Ananthapalppu, son of Esaki Madan Boothathan was arrayed as 49th defendant and his sons namely Audichan Nadar, Ponnumony Nadar, Ponnamperumal and Atchuthan were arrayed as defendants 40 to 43 in the above original suit and his father's name is Ponnumony Nadar. There was a preliminary decree passed on 23.09.1982, wherein his father and his brothers were allotted 90 cents as per Exs.B.59 & 60 and his grandfather/49th defendant took mortgage in the year 1055 and 1060 ME from the jenmies for 1/4th share in the suit property under 14/21

Exs.B6, 7, 8, 9 & 12 and he made development in the above property. After the death of 49th defendant, the defendants 40 to 43 being the sons of 40th defendant, are entitled to the right of their father 1/4th share in the suit schedule property under time barred mortgage and 1/4th share would come to 243 cents. As against the judgment and decree passed in O.S.No.60 of 1965, dated 23.09.1982 on the file of the District Munsif Court, Kuzhithurai, the defendants 32, 64 to 67 ie., Sivadhasan Nair, Madhavan Nair, Somasekara Nair, Manikandan Nair have preferred an appeal in A.S.No.173 of 1983 on the file of the Sub Court, Kuzhithurai and the first Appellate Court partly allowed the appeal and modified by reducing the defendants 40 to 43's share of 90 cents into 77-1/2 cents by the judgment and decree dated 10.09.

1990 on the file of the Sub Court, Kuzhithurai. Aggrieved over the judgment and decree in A.S.No.173 of 1983, the defendants 40 to 43 preferred Second Appeal in S.A.No.1016 of 1991 on the file of this Court and the same was allowed and restored the defendants 40 to 43 shares of 90 cents and this Court held that relating to the mortgage right, since it is not a subject matter in the second appeal, it was not discussed and decided. Thus, the trial Court decreed with regard to the defendants 40 to 43 shares of 90 cents and 1/4th share in the suit property under time-barred mortgage is restored and confirmed.

3.According to the petitioners herein, one Kumara Pillai/5th defendant has been 15/21

allotted 40 cents in the preliminary decree in O.S.No.60 of 1965 on the file of the District Munsif Court, Kuzhithurai and further his wife Kunjulakshmi has got title for 1 acre 44 cents under the sale deeds in Exs.B.116, 118, 119 and 123 and the above properties have been conveyed to Kunjulakshmi with the liability to discharge the mortgage right of 49th defendant. But Kunjulakshmi failed to discharge the mortgage and hence, she does not perfect title under Exs.B.116, 118, 119 and 123 and the above property became time barred and unredeemed mortgage, further, the above property comes under 1/4th right of time-barred and unredeemed mortgage right in the suit schedule property. Thereafter, 66th defendant Ramachandran Nair, one of the sons of the fifth defendant Kumara Pillai, filed an application in I.A.No.

55 of 2004 for passing a secondary preliminary decree under Order 20 Rule 18 of C.P.C in O.S.No.60 of 1965 on the file of the I-Additional District Munsif Court, Kuzhithurai. In the above I.A., the defendants 40 to 43 were shown as the respondents 55 to 58, but, unfortunately, the summons were not properly served upon them. Hence, they could not contest the above I.A.No.55 of 2004 for secondary preliminary decree, hence, behind the back of the respondents 55 to 58, the secondary preliminary decree was passed in I.A.No.55 of 2004 on 05.08.2004. Challenging the secondary preliminary decree, respondents 49 and 81 have preferred the first appeal in A.S.No.

alone was shown in the cause-title as 39th respondent and other respondents were not shown as respondents despite they are parties to the earlier proceedings as respondent Nos.55, 56 and 58. The Sub Court allowed the first appeal in A.S.No.93 of 2004 and set aside the secondary preliminary decree passed in I.A.No.56 of 2004, dated 09.08.2004 on the file of the I Additional District Munsif Court, Kuzhithurai. 4.Challenging the judgment and decree passed in A.S.No.93 of 2004, 66th defendant Ramachandran Nair had preferred S.A(MD)No.1311 of 2006 and likewise, Somaskearan Nair/65th defendant had preferred Second Appeal in S.A.(MD)No.1310 of 2006 as against the judgment and decree passed in A.S.No.91 of 2004 reversing the judgment and decree passed in I.A.No.56 of 2004 on the file of this Court. 5.

According to the petitioners, though they are the legal heirs of the defendants 40 to 43, the petitioners herein were not arrayed as parties and shown in the cause title, as they are all the contesting parties in O.S.No.60 of 1965 on the file of the District Munsif Court, Kuzhithurai. In the above Second Appeals, their forefathers right of 1/4th share in the suit schedule property comes under unredeemed timebarred mortgage right. Hence, the petitioners herein are proper and necessary in the above Second Appeals for proper adjudication. If these impleading petitions are not allowed, the petitioners herein would lose the valuable right of 1/4th share in the Second Appeals and prayed for allowing these petitions.

6.The learned counsel appearing for the first respondent/appellant in S.A(MD) No.1310 of 2006 and the learned counsel appearing for the fourth respondent/fourth appellant in S.A(MD)No.1311 of 2006 had filed a detailed counter-affidavit. 7.The learned counsels appearing for the first respondent and the fourth respondent would submit that the shares of the petitioners herein had already attained their finality and they are entitled to only to 90 cents and not entitled to 1/4 share of the time-barred mortgage. The same was declared in the preliminary decree passed in O.S.No.60 of 1965 on the file of the I Additional District Munsif Court, Kuzhithurai. Further, the proposed petitioners have not filed any appeal against the supplementary preliminary decree passed in I.A.Nos.55 and 56 of 2004 in O.S.No.60 of 1985.

The mortgage rights of these petitioners' predecessors were not discussed either in the trial Court or even in the first Appellate Court. During the pendency of the final decree proceedings, these petitioners' predecessors filed an Interlocutory application in I.A.No.443 of 1992 seeking to correct the preliminary decree and to include their 1/4th share of mortgage right, however, the same was dismissed. Subsequent to the same, the petitioners' predecessors had also filed another application in I.A.No.444 of 1992 seeking to correct the supplementary preliminary decree and to include their 1/4th share in the mortgage right, the same was also dismissed.

appeal. At this juncture, when the parties herein before this Court are fighting between the legal heirs of Kumara Pillai and Kunjulakshmi, the petitioners have no right to interfere with the inter se dispute between the legal heirs and they are third parties to the proceedings. All the rights have already been decided in O.S.No.60 of 1965 on the file of the I Additional District Munsif Court, Kuzhithurai in the preliminary decree and the supplementary preliminary decree has been challenged and the same is pending and they have no prejudice before this Court for deciding the issue between the legal heirs of Kumara Pillai and Kunjulakshmi.

According to the learned counsel, when the petitioners' right had already attained finality and they were entitled only to 90 cents and the decision regarding 1/4th share, there was no decree as such and the same was declared in the preliminary decree passed in O.S.No.60 of 1965 on the file of the I Additional District Munsif Court, Kuzhithurai, the petitioners have not filed any appeal against the supplementary preliminary decree passed in I.A.Nos.55 and 56 of 2004 in O.S.No.60 of 1965. Hence, they need not be impleaded as the respondents and prayed for dismissal of these petitions. 8.Heard the learned counsel appearing on either side. 9.

respondent/appellant in S.A(MD)No.1310 of 2006 filed an application in I.A.No.55 of 2004 on the file of the learned I Additional District Munsif Court, Kuzhithurai as well as one Somasekaran Nair filed an application in I.A.No.56 of 2004 seeking supplementary preliminary decree allotting 1/5th share and the learned Court, considering the earlier proceedings in A.S.No.173 of 1983, granted a decree as prayed for in both the applications. Aggrieved over the same, respondents 1 and 47 jointly filed the first appeals in A.S.Nos.91 & 93 of 2004 on the file of the Sub Court, Kuzhithurai. The first Appellate Court allowed the appeal reversing the judgment and decree of the trial Court. Against which, the appellants in the Second Appeals preferred the above Second Appeals.

When that being the case, the petitioners have got no say in these Second Appeals being filed between the legal heirs of Kumara Pillai and Kunjulakshmi, this Court is of the view that the petitioners cannot be impleaded themselves in these Second Appeals. It is also brought to the knowledge of this Court that in the year 2007, the petitioners had already filed a similar application in M.P(MD)No.1 of 2007, which was filed by another counsel, who had not contested the same and later point of time, the same was dismissed as withdrawn and it is estopped from filing another petition for the similar cause of action. 10.In view of the abovestated facts and circumstances, this Court is not inclined to interfere in this matter about any rights and these petitions are dismissed.

made clear that the impleading petitioners cannot seek more than what has been stated in the applications for impleading.

sd/- 16/10/2024 / TRUE COPY / /10/2024 Sub-Assistant Registrar ( C.S. I / II / III / IV ) Madurai Bench of Madras High Court, Madurai - 625 023.

PS TO 1 THE I ADDITIONAL DISTRICT MUNIF, KUZHITHURAI.

2 THE SUBORDINATE JUDGE, KUZHITHURAI.

+2 CC to M/s.J.ANANDHAVALLI, Advocate ( SR-12571 & 12572 [I] dated 17/10/2024 )

ORDER

IN C.M.P(MD)Nos.8307 & 8309 of 2024 in S.A(MD)Nos.1311 & 1310 of 2006 Date :16/10/2024 SA/MMS/SAR. /28.10.2024/21P/5C Madurai Bench of Madras High Court is issuing certified copies in this format from 17/07/2023. 21/21