MANNU NAICKER Vs. KALAIMANI

JUDGEMENT

(1.) THIS appeal by the defendants is directed against the order of remand passed by the learned Subordinate Judge, Tiruvannamalai, in A.S.No.40 of 1979. The facts which are necessary for the disposal of the appeal are briefly as follows:

(2.) THE suit claim is resisted by the defendants. THE first defendant has filed a written statement, which was adopted by other defendants. THE defendants have contended there had been no partition between the sons of Narayana Naicker at any time. Mottai Naicker thed as an undivided coparcener in 1941. His widows were not entitled to succeed to the estate of their deceased husband as per Hindu Law. THE estate of Mottai Naicker passed by survivorship to his three brothers. Rathinammal and Vellachi were provided maintenance from out of the estate. Rathinammal had no right, title or interest to settle the properties in favour of the plaintiffs. THE settlement is a void transaction. THE plaintiffs are only co-owners with the defendants. Hence the suit for declaration and injunction is not maintainable.

(3.) ON the other hand learned counsel for the respondents contended that there is acceptable evidence on the side of the plaintiffs even before the trial Court and the learned Appellate Judge has not correctly appreciated the same He also drew my attention to the evidence of the witnesses and other circumstances. He would also contend that though the order of remand cannot be supported yet the appellate Court has power to permit the parties to adduce additional evidence if necessary. Learned cousel for the appellants also did not seriously oppose this but he would say that it should be left to the discretion of the appellate Court whether the additional evidence is necessary or not.