ARUMUGHA GOUNDER Vs. TMT PALANIAMMAL

JUDGEMENT

(1.) THE defendants are the appellants.

(2.) THE first appellant, Arumugham who died pending appeal, is the father of one Palaniswamy and one Subramaniam, who was arrayed as the second defendant and is now the second appellant. THE first respondent is the widow of the said Palaniswamy and the respondent Nos.2 and 3 are their children. Arumugham's wife predeceased him. Since Arumugham did not take care of the respondents after the death of his son, they asked for partition of the joint family properties on several occasions. Since the appellants did not come forward to give the respondents their share and continued to enjoy the joint family properties, respondents were constrained to file the suit for their one third share in the property and for mesne profits. According to the respondents, the properties which have to be partitioned include house properties, agricultural lands including coconut trees and power loom factories. THE second appellant alone filed the written statement in which the relationship was admitted. However, according to him the existence of coconut trees was baseless and the income from the lands as stated by the respondents and right in respect of complaint was also denied. It was also stated in the written statement that the first appellant had incurred debts on behalf of the family and therefore, any partition of the properties can only be done after adjusting the amounts due under the debts, since the respondents will also have to bear their share of the liability in the joint family property. Subject to this the second defendant submitted that the suit may be decreed.

(3.) THE decision reported in Malkiat Singh and another v. Joginder Singh and others Malkiat Singh and another v. Joginder Singh and others Malkiat Singh and another v. Joginder Singh and others A.I.R. 1998 S.C. 258 was relied on by the learned counsel for the appellant for the purpose that when the parties were not present, when the counsel reported no instructions, the court ought to have issued notice to the parties. In the said decision reliance was placed on an earlier decision reported in TahilRam Issardas Sadarangani v. Ramchand Issardas Sadaranjani TahilRam Issardas Sadarangani v. Ramchand Issardas Sadaranjani TahilRam Issardas Sadarangani v. Ramchand Issardas Sadaranjani A.I.R. 1993 S.C. 1182 where the Supreme Court held that, when the parties were not present in a court and the counsel withdrew from the case and there was nothing to show whether the petitioners had notice of hearing of the case on that day, in the interest of justice a fresh notice for actual date of hearing should have been issued. THErefore factually in the cases that arose for consideration before the Supreme Court, it was found that the parties were not at fault and therefore, they should not suffer.