Remanded

Tamilzhchelvan v. Kalaivani

Madras HC6 Nov 2019CRP/3257/2019

Case brief

AI extract

What is this about?

Civil revision petition challenging an order allowing impleadment of three respondents as legal heirs of the fifth defendant. The High Court set aside the order due to a mistake in genealogical identification and remanded the matter to the trial court for fresh verification and orders within 30 days.

What did the court decide?

Impugned order set aside; matter remanded to the Principal District Munsif, Chidambaram for fresh hearing and verification within 30 days.

Tamilzhchelvan Vs Kalaivani — Property and Title | Madras HC (2019)

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C.R.P.No.3257 of 2019

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 06.11.2019

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CORAM:

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THE HONOURABLE MR.JUSTICE R.SURESH KUMAR

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C.R.P.(PD)No.3257 of 2019

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Tamizhchelvan .. Petitioner
Vs.
1.Kalaivani
2.Dhanabakiyam
3.Kalaichelvam
4.Kalai Amuthan
5.Kalai Amutham
6.Annalakshmi
7.Kalai Mathi
8.Kalai Selvi
9.Gandhi
10.Kamala
11.Manimaran ... Respondents

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PRAYER : Petition filed under Article 227 of the Constitution of India to set aside the Fair and Decreetal order dated 03.08.2018 passed in I.A.No.230/2018 in O.S.No.187/2016 on the file of the Principal District Munsif Court at Chidambaram and thereby to dismiss the petition in I.A.No.230/2018 through out with costs.

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For Petitioner : Mr.R.Krishnasamy For R1 : Ms.P.Srividhya

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http://www.judis.nic.in

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C.R.P.No.3257 of 2019

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ORDER

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This Civil Revision Petition is filed against the fair and decreetal order passed in I.A.No.230 of 2018 in O.S.No.187 of 2016 on the file of the Principal District Munsif Court at Chidambaram by order dated 03.08.2018.

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2.Heard Mr.R.Krishnasamy, learned counsel for the revision petitioner and Ms.P.Srividhya, learned counsel appearing for the first respondent who is the main contesting respondent. In respect of all other respondents, eventhough notices have been served and their names have been shown in the cause list, none presents for them.

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3.Before the Trial Court, one Kalaivani filed a suit that is O.S.No.187 of 2016 against eight (8) defendants for partition of the property which originally belongs to one Late.Kaliyaperumal. In the said suit, the present application has been filed by the plaintiff herself to implead the respondents 9 to 11 therein as legal heirs of deceased one Kalai Amutham and one Kalaiyarasi. However, the learned Judge had allowed the same on the mistaken impression that those respondents 9 to 11 namely one Gandhi, Kamal and one

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http://www.judis.nic.in

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C.R.P.No.3257 of 2019

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Manimaran are the legal heir of the fifth defendant namely Kalai Amutham. In this context, it is the case of both the revision petitioner as well as the first respondent that, the petition which was allowed to implead respondents 9 to 11 as party defendants in the suit, can be accepted, provided, those respondents 9 to 11 should not have been impleaded as defendants of the alleged legal heirs of the fifth respondent namely Kalai Amutham but only as the legal heirs / legal representatives of one Late.Kalai Amutham and one Kalaiyarasi.

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4.In order to appreciate the said controversy, this Court after having gone through the genealogical tree supplied by the parties, is able to ascertain that, one Kaliyaperumal, S/o.Paradesi is the kartha of the property, who died intestate, now being subjected to partition, is no more. Kaliyaperumal has two wives namely the first wife Annalakshmi and the second wife Dhanabakkiyam. The said Annalakshmi is no more. Through his first wife Annalakshmi, the Late.Kaliyaperumal having four(4) children. All the four children are female children namely, Kalai Amutham, Kalaiyarasi, Kalaimathi and Kalaiselvi. Out of these four, the first daughter Kalai Amutham and second daughter Kalaiyarasi are no more. The

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http://www.judis.nic.in

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C.R.P.No.3257 of 2019

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said Kaliyaperumal, through his second wife Dhanabakkiyam, having six(6) children. Out of the six children, the second child who is none other than the plaintiff Kalaivani. Along with the said Kalaivani there are five other children namely Kalaiselvan, Tamilselvan who is the revision petitioner herein, Kalai Amutham, W/o.Kumar, Annalakshmi and Kalai Amuthan.

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5.The confusion starts here where the first daughter of Kaliyaperumal through his wife Late.Annalakshmi is Mrs.Kalaiamutham who is no more, like that the fourth child of Kaliyaperumal through the second wife Dhanabakkiyam is also the female child namely Kalaiamutham W/o.Kumar, who is the fifth respondent.

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6.With these background of the genealogical tree, when the suit was laid by the plaintiff Kalaivani for partition, all other legal heirs have been impleaded as party respondents in the suit except the legal heirs of one KalaiAmutham and Kalaiyarasi who are the first and second daughters of the Kaliyaperumal through his first wife Annalakshmi. The reason being that, the said Kalaiamutham and Kalaiyarasi are no more. When the said Kalaiamutham and

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http://www.judis.nic.in

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C.R.P.No.3257 of 2019

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Kalaiyarasi are no more, plaintiff should have impleaded the legal heirs of the two people. Since the legal heirs have not been impleaded, in order to implead the legal heirs of the said two people namely Kalaiamutham and Kalaiyarasi, as R9 and R10 are the legal heirs of Kalaiamutham and R11 is the legal heir of Kalaiyarasi, the present application was filed.

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7.Since the petition was allowed, however, the learned Judge by mistaken impression that R9 to R11 are the legal heirs of Mrs.Kalaiamutham w/o.Kumar who is D5 i.e., R5 in the application. It is evident from the opening para of the order impugned which reads thus;

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,e;j kDthdJ kDjhuuhy; chpikapay; tprhuiz Kiwr; rl;lk; fl;lis 1 tpjp 10?d; fPH; ,we;J nghd 5?k; vjph;kDjhuh;?5?k; gpujpthjpf;F 9 Kjy; 11 vjph;kDjhuh;fis mry; tHf;fpy; 9 Kjy; 11 gpujpthjpfshf jug;gpdh;fshf nrh;f;f cj;jutplf; nfhhp jhf;fy; bra;ag;gl;Ls;sJ/

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8.Therefore, the learned Judge was in the impression that R9,

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R10 and R11 are the legal heirs of D5. However, the fact remains that R9 and R10 are the legal heirs of one late Kalaiamutham as

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C.R.P.No.3257 of 2019

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said out above. Since at the time of filing the suit itself, the said Kalaiamutham was no more, she was not at all impleaded and shown as a defendant. R11, now sought to be impleaded as the only legal heir of Late.Kalaiyarasi who also had not been impleaded as party defendant as she was also no more at the time of filing the suit.

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9.Therefore, the only controversy to be resolved here is that the respondents 9, 10 and 11 are to be impleaded as the legal representatives of the Late.Kalaiamutham and Kalaiyarasi and not the legal representatives of D5 that is, Mrs.Kalaiamutham, W/o.Kumar, since the mistake could have been occurred in view of the similarity of the names of the family and moreover the name Kalaiamutham carried by two persons in the family one is no more and one is alive, who is the fifth defendant.

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10.The learned Judge having been in the mistaken impression had passed the order which is impugned herein. Therefore, the aforesaid mistake have to be rectified. Therefore, it requires that the matter to be remitted back to the District Munsif, Chidambaram, for passing appropriate orders.

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http://www.judis.nic.in

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C.R.P.No.3257 of 2019

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11.In view of the above, the impugned order in I.A.No.230 of 2018 dated 03.08.2018 passed by the learned Principal District Munsif, Chidambaram is set aside and the matter is remitted back to the Court below. The learned Principal District Munsif, Chidambaram, shall re-hear the matter and after verifying the records and if it need be, both the parties can be heard afresh and having ascertained the status of R9 to R11 as to whether they are the legal heirs of Late.Kalaiamutham and Kalaiarasi, necessary orders has to be passed and the needful to be done, within a period of 30 days from the date of receipt of a copy of this order.

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12.With these directions, this petition is disposed of. No
costs.
06.11.2019
Index: Yes/No
Internet: Yes/No
pnn

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http://www.judis.nic.in

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C.R.P.No.3257 of 2019

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R.SURESH KUMAR , J., pnn

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To
The Principal District Munsif, Chidambaram.

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C.R.P.(PD)No.3257 of 2019
06.11.2019

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http://www.judis.nic.in

Tamilzhchelvan v. Kalaivani

Case brief

What is this about?

What did the court decide?

Tamilzhchelvan v. Kalaivani

Case brief

What is this about?

What did the court decide?

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