Disposed

Malliga v. Mentally Ill Health INDIRANI(DIED)1.MENTALLY Ill Health Prema Thangam

Madras HC25 Nov 2021CRP/1799/2021

Case brief

AI extract

What is this about?

In a partition suit regarding the property of the late Bakiyanathan, the High Court disposed of a Civil Revision Petition. The petitioners sought to claim a one-third share as a legal heir after amending the plaint to reflect the death of the first defendant, who was also a legal heir. The High Court disposed of the revision granting liberty to the respondents to file an additional written stateme

What did the court decide?

Revision dismissed; liberty granted to respondents to file additional written statement; trial court directed to dispose of case within three months.

Malliga Vs Mentally Ill Health INDIRANI(DIED)1.MENTALLY Ill Health… — Partition | Madras HC (2021)

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C.R.P.(PD).No.1799 of 2021

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 25.11.2021

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CORAM

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THE HONOURABLE MRS.JUSTICE S.KANNAMMAL

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C.R.P.(PD).No.1799 of 2021 and C.M.P.No.13983 of 2021

1.Malliga 2.Samuvel

.. Petitioners

Mentally ill-health Indirani (Died)

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1.Mentally ill-health Prema Thangam

2.Meckanz

3.V.Kanagaraj

.. Respondents

Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the fair and final order dated 19.03.2021 made in I.A.No.4 of 2021 in O.S.No.374 of 2015 on the file of the II Additional SubCourt, Erode, and allow the Civil Revision Petition.

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For Petitioners : Mr.S.Kaithamalai Kumaran For R1 & R2 : Mr.Sudhakar For R3 : Ex-parte

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ORDER

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This Civil Revision Petition has been filed by the petitioners, seeking

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to set aside the fair and final order dated 19.03.2021 made in I.A.No.4 of

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https://www.mhc.tn.gov.in/judis

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C.R.P.(PD).No.1799 of 2021

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2021 in O.S.No.374 of 2015 on the file of the II Additional Sub-Court, Erode, and allow the Civil Revision Petition.

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2.Heard the learned counsel for the petitioners as well as the

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respondents.

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3.The learned counsel for the petitioners would submit that the petitioners herein, filed a suit for partition claiming 1/3^rd share in the suit property which was the property belonging to late Bakiyanathan. It is submitted that the said late Bakiyanathan left his legal heirs wife, two daughters and one son. The 1^st petitioner herein is the widow, who is the daughter-in-law of Bakiyanathan. The 2^nd petitioner herein is the alleged son born to 1^st petitioner and the son of late Bakiyanathan, Jothi Gunasekaran. Admittedly, the deceased respondents 1 and 2 are the daughters of late Bakiyanathan. The 3^rd respondent herein is the maternal uncle of D1 and D2 claiming right in the property by way of a Will executed by the wife of deceased Bakiyanathan, i.e., (late) Pushpam. The learned counsel would submit that during the pendency of the suit, the 1^st defendant passed away

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https://www.mhc.tn.gov.in/judis

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C.R.P.(PD).No.1799 of 2021

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on 11.06.2017 and it came to knowledge on 18.11.2020 and hence, he filed a petition to amend the plaint in I.A.No.3 of 2021 and the same has been allowed.

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4.The learned counsel for the petitioners would submit that subsequently, he filed a petition in I.A.No.4 of 2021 for the amendment of plaint claiming half share in the suit property. The trial Court after hearing the arguments of the both the parties, dismissed the petition. Aggrieved against the order, the present Civil Revision Petition has been filed.

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5.The learned counsel for the respondents would seriously object to

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the amendment sought for by the petitioner, which reads as under:

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"14m. tHf;F epYitapy; 1k; gpujpthjp 11/06/2017 njjpapy; fhykhfp tpl;ljhf gpujpthjpfs; jug;gpy; 18/11/2020k; njjpapy; mwptpf;fg;gl;lJ/ nkw;go 1k; gpujpthjpf;F 2k; gpujpthjp jhd; thhpR ntW thhpRfs; cs;sjhf bjhptpf;fg;gltpy;iy/ vdnt 2k; gpujpthjp

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Kd;ng tHf;fpy; jug;gpduhf cs;s epiyapy; 1k; gpujpthjpapd; ,wg;ig gjpt[ bra;J bfhs;s

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https://www.mhc.tn.gov.in/judis

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C.R.P.(PD).No.1799 of 2021

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ntz;o jhth jpUj;jg;gl;Ls;sJ (Amended as per order in I.A.No.3/2021 dated 19.01.2021)"

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6.The learned counsel would also relied upon a decision of the

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Hon'ble Supreme Court, reported in " 2015 (10) Supreme Court Cases 203 (Ram Niranjan Kajaria Vs. Sheo Prakash Kajaria and Others)" , wherein,

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it has been held as under in para 20 as under:

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"20. On amendments generally, in th decision reported in Revajeetu Builders and Developers v. Narayanaswamy and Sons, after referring to Gautam Sarup, the principles on amendment have been summarised at para 63. It has been held as follows: (Revajeetu Builders case, SCC p.102)

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“63.On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

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(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

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(2) whether the application for amendment is bona fide or

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mala fide;

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(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

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(4) refusing amendment would in fact lead to injustice or

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lead to multiple litigation;

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(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

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(6) as a general rule, the court should decline amendments if a fresh suit on the amended clais would be barred by

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https://www.mhc.tn.gov.in/judis

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C.R.P.(PD).No.1799 of 2021

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limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.”

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The learned counsel for the petitioners would submit that the

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petitioners are not claiming share as a legal heir of the deceased D1 Indhirani. Since it is not the case of the petitioner/plaintiff that they are claiming share as a legal heir of the deceased Indhirani i.e., D1 as submitted by the learned counsel for the respondents herein, the petitioners herein is not entitled for the relief as mentioned in 14(A) and he is entitled for the 2^nd prayer of claiming 1/3^rd share in the property.

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7.With the above observations, this Civil Revision Petition is disposed of. The liberty is given to the respondents herein to file additional written statement and the trial Court is directed to dispose of the case as expeditiously as possible, preferably within a period of three months from the date of receipt of a copy of this order. No costs. Consequently connected Miscellaneous Petition is closed.

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gbi 25.11.2021

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Index: Yes/No Internet: Yes/No

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https://www.mhc.tn.gov.in/judis

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C.R.P.(PD).No.1799 of 2021

S.KANNAMMAL.J.,

gbi

The II Additional Sub-Judge, Erode.

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C.R.P.No.1799 of 2021

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25.11.2021

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https://www.mhc.tn.gov.in/judis

Malliga v. Mentally Ill Health INDIRANI(DIED)1.MENTALLY Ill Health Prema Thangam

Case brief

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Malliga v. Mentally Ill Health INDIRANI(DIED)1.MENTALLY Ill Health Prema Thangam

Case brief

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