Research › Search › Judgment

Madras High Court · body

2017 DIGILAW 4089 (MAD)

Minor Ulagammal @ Kanthimathi v. S. Somasundaram

2017-12-04

V.BHAVANI SUBBAROYAN

body2017
JUDGMENT : 1. This Civil Miscellaneous Appeal has been filed by the appellant/plaintiff against the order and decreetal order of the learned First Additional District Judge, Tirunelveli, dated 23.11.2005 dismissing the application in I.A.No.68 of 2005 in I.A.No.146 of 2006 in O.S.No.64 of 2004. 2. The appellant herein filed a suit in O.S.No.64 of 2004 before the First Additional District Court, Tirunelveli, as early as in the year 2001, which got numbered in the year 2004, wherein, the suit is filed for partition seeking one-sixth share to the plaintiff by partitioning the schedule mentioned properties 1 to 4, by metes and bounds and to deliver the same to the plaintiff and further, the appellant/plaintiff sought for a direction directing the defendants to give one-sixth share in the profit of the fifth and sixth schedule business from the demise of Sankaran Chettiar and to pay the same continuously by producing accounts to the plaintiff. 3. The appellant/plaintiff-minor Ulagammal alias Kanthimathi, represented by her mother and next friend Krishnammal, filed a suit stating that the said Ulagammal alias Kanthimathi was the daughter of late Sankaran Chettiar through his second wife-Krishnammal. The said Sankaran Chettiar died leaving behind the defendants 1 to 5 as well as the plaintiff as legal heirs and the appellant/plaintiff is also entitled for one-sixth share from the estate left behind by the said Sankaran Chettiar. 4. The respondents filed a written statement denying that there was any relationship between the said Ulagammal alias Kanthimathi and Sankaran Chettiar. It is further stated that the said Ulagammal alias Kanthimathi had never been known to their father Sankaran Chettiar and the allegation that the appellant-Ulagammal alias Kanthimathi was born to their father is denied. 5. While that being so, the suit in O.S.No.64 of 2004 filed by the appellant/plaintiff was dismissed for default on 09.09.2004, in which, the appellant/plaintiff filed an application in I.A.No.146 of 2004 to set aside the order and to restore the suit on file, under Order 9 Rule 9 and Section 151 C.P.C. 6. A detailed counter-affidavit has been filed by the respondents therein. 7. Even though I.A.No.146 of 2004 filed for restoring the suit in O.S.No.64 of 2004, dated 09.09.2004, the same was dismissed for non- prosecution on 15.06.2005. A detailed counter-affidavit has been filed by the respondents therein. 7. Even though I.A.No.146 of 2004 filed for restoring the suit in O.S.No.64 of 2004, dated 09.09.2004, the same was dismissed for non- prosecution on 15.06.2005. As against the dismissal order of I.A.No.146 of 2004, the appellant/plaintiff herein filed an application in I.A.No.68 of 2005 in I.A.No.146 of 2004 in O.S.No.64 of 2004 before the First Additional District Court, Tirunelveli and the learned First Additional District Judge, Tirunelveli, dismissed the said I.A. Against which, the present Civil Miscellaneous Appeal has been filed. 8. Heard the learned counsel for the appellant and perused the materials available on record. 9. The learned counsel appearing for the appellant/plaintiff submitted that the trial Court had erred in passing an order in I.A.No.68 of 2005, as the suit is filed for partition. 10. It is seen that as far as the order passed by the First Additional District Court, Tirunelveli is concerned, this Court do not find any infirmity when the trial Court decided to restore the earlier I.A, which was filed to restore the suit. 11. The First Additional District Judge, Tirunelveli, upon perusing the affidavit filed in support of I.A.No.68 of 2005 has categorically held that the appellant/plaintiff filed the application for the purpose of prolonging the case, ie., I.A.No.146 of 2004, is initiated. This Court concurs with the view taken by the First Additional District Judge, Tirunelveli, in this context. Though the reasons adduced by the appellant/plaintiff before the First Additional District Court, Tirunelveli, in seeking to restore the earlier application filed for restoring the suit, is not sufficient, which made the learned First Additional District Judge, Tirunelveli, to view that the reasons stated in the affidavit is not supported by any documentary evidence or any reasonable cause. Thus, the learned First Additional District Judge, Tirunelveli, dismissed the petition. 12. No doubt there need not be any interference shown in the order passed by the learned First Additional District Judge, Tirunelveli, however, the subsequent event which also has to be taken into account by the Courts below. The entire suit as well as the subsequent proceedings were initiated by the mother, representing the minor Ulagammal alais Ganthimathi is for partition/share. No doubt there need not be any interference shown in the order passed by the learned First Additional District Judge, Tirunelveli, however, the subsequent event which also has to be taken into account by the Courts below. The entire suit as well as the subsequent proceedings were initiated by the mother, representing the minor Ulagammal alais Ganthimathi is for partition/share. However, pending appeal, by an order, dated 26.02.2007 in M.P(MD)No.1 of 2007 in C.M.A(MD)No.1202 of 2007, the said minor Ulagammal alias Ganthimathi was declared as major discharging her mother from the representative capacity as guardian. 13. At this juncture, it would be prudent to see that the right of the appellant/plaintiff, should be protected, after she attains majority, whether she was born to late Sankaran Chettiar and whether she is the legal heir of the deceased Sankaran Chettiar. In that event, if she is born to late Sankaran Chettiar, she would be automatically entitled to get a share in the partition and she can maintain a suit for partition. But all these aspects, has to be decided only before the trial Court by conducting fair trial and giving an opportunity to the appellant/plaintiff or who attained majority, only after the institution of the present appeal. Though this Court is not interfering in the order passed by the First Additional District Judge, Tirunelveli, in view of the subsequent status obtained by the appellant/plaintiff as a major, it would be appropriate to give the appellant/plaintiff, a fair chance to conduct the case in her own capacity. The ground taken by the learned counsel for the appellant/plaintiff that the appellant/plaintiff will also be entitled to a share as per the amended Hindu Law of Succession and other grounds raised by the learned counsel for the appellant/plaintiff has to be looked into by the trial Court. 14. Under the said circumstances, the order passed by the learned First Additional District Judge, Tirunelveli is set aside and I.A.No.68 of 2005 in I.A.No.146 of 2004 in O.S.No.64 of 2004 is restored on its file. It is made clear that the learned First Additional District Judge, Tirunelveli, shall dispose of I.A.No.68 of 2005 in I.A.No.146 of 2004 in O.S.No.64 of 2004 within a period of six weeks from the date of receipt of a copy of this order and the appellant/plaintiff shall co-operate with the said Court, without seeking any further adjournment. It is made clear that the learned First Additional District Judge, Tirunelveli, shall dispose of I.A.No.68 of 2005 in I.A.No.146 of 2004 in O.S.No.64 of 2004 within a period of six weeks from the date of receipt of a copy of this order and the appellant/plaintiff shall co-operate with the said Court, without seeking any further adjournment. It is also made clear that the appellant/plaintiff shall not seek for any adjournment, enabling the order to be passed by the Court below within the stipulated time as fixed by this Court. 15. With the above observation and direction, this Civil Miscellaneous Appeal is allowed. No costs.