SEKAR Vs. POONGAVANATHAMMAL

JUDGEMENT

(1.) This Second Appeal is filed by the Legal Representatives of the First Defendant, challenging the Final Decree proceedings in a Suit for Partition. Originally the Plaintiff, since deceased had filed the Suit for Partition in the Suit properties. The Suit was decreed on 1st August 1977 by allotting 1/4th share in all the Suit properties to the Plaintiff. Pursuant to the Decree, an Application in I.A. No. 1090 of 1991 was filed by the Second Defendant before the District Munsif Court, Jayankondam for passing of Final Decree. The Plaintiff was dead by then. Before the Trial Court, on the side of the Petitioner/Second Defendant, no witnesses and documents were marked. On the side of the Respondents/Defendants 2 to 13, 14 documents were marked as Ex.R1 to R14 and one Govindan was examined as RW1. Exs.C1 to 8 were marked as Court documents. Based on the Report of the Commissioner, a Final Decree was passed. Challenging the correctness of the Order, the First Appeal in A.S. No. 60 of 1996 on the file of the Subordinate Court, Ariyalur, was preferred by the First Defendant, who was the Fourth Respondent in I.A. No. 1090 of 1991 and the Appeal was dismissed. Challenging the same, the present Second Appeal is filed by the Legal Representatives of the First Defendant.

(2.) When the Second Appeal was taken up for hearing, a Memo was filed on behalf of the Respondents 1, 3, 5, 7, 8 & 9 informing to the Court that the 11th Respondent in the Appeal namely, Devi died even during the pendency of the First Appeal. In response to the said Memo, the Appellants filed M.P. Nos. 1 to 3 of 2014 praying for condonation of delay of 3401 days in seeking to set aside the abatement caused due to the death of the 11th Respondent-Devi in S.A. No. 588 of 2008; to set aside the abatement caused due to the death of the 11th Respondent Devi in S.A. No. 588 and to bring the 12th Respondent herein on record as Legal Representative of the deceased 11th Respondent-Devi.

(3.) Respondents 1, 3, 5, 7, 8 & 9 herein filed a common Counter Affidavit contending that the 11th Respondent namely, Devi died even as early as on 14.7.2004. The judgment in the First Appeal was rendered on 24.1.2007. Therefore, it was objected by the Respondents that the Appeal itself is a nullity as the same being passed against a dead person.