Research › Search › Judgment

Madras High Court · body

2020 DIGILAW 1003 (MAD)

Pappal v. Palaniappan @ Palanisamy

2020-07-13

P.VELMURUGAN

body2020
JUDGMENT : (Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 23.10.2017 made in I.A.No.471 of 2017 in O.S.No.92 of 2012 on the file of the learned Sub Court, Sankari.) 1. The 1st respondent is the plaintiff in O.S.No.92 of 2012. The Revision Petitioners are the defendants 1, 4, 5, 7, 9 to 13. The 1st respondent, as plaintiff, filed the suit in O.S.No.92 of 2012 on the file of the Subordinate Judge, Sankagiri, for partition and separate possession against petitioners herein and respondents 2 to 10. The said suit, after the completion of trial and when the matter is posted for arguments, at that time, the plaintiff/1st respondent had filed an application in I.A.471 of 2017 to send the 1st respondent and 2nd petitioner and 2nd respondent for DNA Test before the Dean, Government Mohan Kumara Mangalam Medical College Hospital, Salem, and to get the report from the expert. 2. The trial court, after hearing the arguments allowed the petition in I.A.No.471 of 2017. Challenging the said order, defendants 1, 4, 5, 7, 9 to 13/Revision petitioners herein filed the present Civil Revision Petition. 3. The learned counsel for the Revision Petitioners would submit that Marimuthu gounder and his wife Pappal viz., father and mother of Petitioners 2 to 4 and respondents 2 and 3 died and since the father of the petitioner is no more, DNA test to the 1st respondent cannot be matched with the deceased Marimuthu gounder and further the first respondent/plaintiff filed the suit in the year 2012 and he has not taken any steps and after trial only, at the time of arguments, he has filed the petition only to drag on the proceedings. 4. The learned trial Judge failed to take into consideration the fact that Marimuthu gounder is no more and in the absence of Marimuthu gounder, DNA test cannot be conducted, but allowed the petition in IA.No.471 of 2017, which warrants interference of this court. 5. The learned counsel for the Revision Petitioners also placed reliance on the order passed by this court in CRP.PD.No.3801 of 2013 dated 21.02.2019 [Raja Vs Gopi]. This court, while considering a similar issue, dismissed the Civil Revision Petition on the ground that when the parents are no more, the paternity cannot be ascertained. 5. The learned counsel for the Revision Petitioners also placed reliance on the order passed by this court in CRP.PD.No.3801 of 2013 dated 21.02.2019 [Raja Vs Gopi]. This court, while considering a similar issue, dismissed the Civil Revision Petition on the ground that when the parents are no more, the paternity cannot be ascertained. In this case also, Marimuthu gounder is no more and the dispute is that the 1st respondent/plaintiff is not born to Marimuthu gounder and in these circumstances, DNA test will not be helpful to the 1st respondent/plaintiff. Therefore, the order passed by the trial court is liable to be set aside and Civil Revision Petition is liable to be allowed. 6. The learned counsel for the 1st respondent/plaintiff submits that during the cross examination, the 2nd petitioner was examined by P.W.1 and admitted during the cross examination, that they are ready to give the sample to ascertain the parentage of the 1st respondent. Therefore, based on the admission given by the 1st respondent and also relying on the judgment of the Honourable Supreme Court, the trial court allowed the petition in I.A.No.471 of 2017 and therefore, there is no illegality or irregularity in the order passed by the trial court. Therefore, there is no merit in the Civil Revision Petition and is liable to be dismissed. 7. Heard both sides and perused the records. 8. Admittedly, the 1st respondent, as Plaintiff, filed the suit for Partition against the Revision Petitioners herein and others in O.S.No.92 of 2012 on the file of the Subordinate Judge, Sankagiri. After trial, during the arguments, the 1st respondent herein filed application in I.A.No.471 of 2017 to send the 1st respondent and 2nd petitioner and 2nd respondent for DNA test before the Dean, Government Mohan Kumaramangalam Medical College Hospital, Salem, and to get expert opinion. The suit filed by the petitioner is for partition and claiming that he is the son of Marimuthu gounder and petitioners 1 to 4 and the respondents 2 to 4 are also children of Marimuthu gounder and therefore he is entitled for partition of the suit property. The suit filed by the petitioner is for partition and claiming that he is the son of Marimuthu gounder and petitioners 1 to 4 and the respondents 2 to 4 are also children of Marimuthu gounder and therefore he is entitled for partition of the suit property. Defendants 2 to 7 have denied the contention of plaintiff and submitted that the 1st respondent/plaintiff is not the son of Marimuthu gounder and he is born to one Kuppusamy Chettiar and during the trial, the 1st respondent stated that he is ready to go for DNA test and during the cross examination, the 2nd petitioner also admitted that he is also ready to go for DNA test. Admittedly, Marimuthu Gounder is no more and the mother of the parties/1st Petitioner/1st defendant is also no more. Therefore, at this stage, as to whether in the absence of the parents of the 1st respondent/plaintiff, whether it is possible to conduct a DNA test or not, has to be decided. 9. The learned counsel for the Revision Petitioners submitted that in the absence of the parents especially Marimuthu Gounder, it is not possible to conduct DNA test and also the learned counsel placed reliance on the order of this court in CRP.PD.No.3801 of 2013 dated 21.02.2019 [Raja Vs Gopi]. 10. Admittedly, in this case, the petitioners 2 to 4 and 2nd and 3rd respondents are the sons of Marimuthu gounder. The question is whether the 1st respondent who filed the suit for partition is also son of Marimuthu gounder. According to the 1st respondent/plaintiff, he is also son of the said Marimuthu Gounder. According to the revision petitioners 2 to 4 and respondents 2 and 3, the 1st respondent/plaintiff was not the son of Marimuthu gounder, but he is only the son of Kuppusamy Chettiar and now Marimuthu Gounder is not alive and therefore, in the absence of Marimuthu gounder, DNA test and report will not be helpful to the case of the plaintiff. 11. This court, by order dated 21.02.2019, in C.R.P.(PD).No.3801 of 2013, in paragraphs 2 and 3 of the order, held as follows :- “The revision petitioner is the plaintiff in the original suit and he filed a suit for partition before the trial court. The dispute between the plaintiff and the defendant is with regard to the paternity. 11. This court, by order dated 21.02.2019, in C.R.P.(PD).No.3801 of 2013, in paragraphs 2 and 3 of the order, held as follows :- “The revision petitioner is the plaintiff in the original suit and he filed a suit for partition before the trial court. The dispute between the plaintiff and the defendant is with regard to the paternity. It is the specific contention of the defendant that the plaintiff is not born to his father. Admittedly, both the parents are not alive. At this stage, this court called for an expert for DNA test from the Forensic Department, Chennai to clarify whether examining parties without their parents, their paternity can be ascertained. 3. To the direction of this court, Dr. N. Mahalakshmi, Deputy Director, DNA Division, Forensic Sciences Department, Chennai-4 is present before this court and explained that in the absence of parents, it is difficult to find out the paternity of the persons. At the most, they can ascertain that both are from the same family and not on paternity, and the result cannot be conclusive in respect of paternity.” In the above referred to case also, the specific contention of the defendants is that the plaintiff is not born to his father and also both the parents are not alive. But this court, has called for expert and one Dr.N.Mahalakshmi, Deputy Director, DNA Division, Forensic Science Department, Chennai, was present before this court and explained that in the absence of parents, it is difficult to find out the parentage, at the most, they can ascertain that both are from the same family. 12. Therefore, a reading of the above referred order in C.R.P.(PD).3801 of 2013 shows that Dr.N.Mahalakshmi has not stated before this court that it is not possible, but it is only stated that it is difficult to find out. Further, the doctor stated that they can ascertain both are from the same family. 13. The contention of the learned counsel for the petitioners herein is that the first respondent/plaintiff is not born to his father Muthusamy Gounder, but to one Kuppusamy Chettiar. Further, the doctor stated that they can ascertain both are from the same family. 13. The contention of the learned counsel for the petitioners herein is that the first respondent/plaintiff is not born to his father Muthusamy Gounder, but to one Kuppusamy Chettiar. Though Marimuthu gounder is not alive, when the 2nd petitioner admitted that he is the son of Marimuthu gounder and when the 1st respondent/plaintiff claims that he is also son of Marimuthu gounder, if the DNA test shows that both are born in the same family, it will be helpful to the case of the 1st respondent/plaintiff. Therefore, under these circumstances, this court does not find any reason to interfere with the order passed by the trial court. Paragraph 3 of the order passed by this Court in CRP.PD.No.3801 of 2013 dated 21.02.2019, that it is difficult to find out the paternity, but it is not stated that it is not at all possible to find out and further, it is stated that there is possibility to ascertain that both are from the same family. However, if it is not possible in Tamil Nadu, the sample can be sent to CFSL Hyderabad. Therefore, under these circumstances, this court finds that the revision is liable to be dismissed. Accordingly the Civil Revision Petition is dismissed. No costs. Consequently, connected CMP is closed.