P.Pappayammal vs. Chandrika Ayyar (Decd)

A.Nos. 4204 to 4206 of 2016 in C.S.No. 1132 of 2009

V.BHARATHIDASAN.J

Application Nos.4204 to 4206 of 2016 have been filed, to condone the delay of 133 days, in seeking to set aside the abatement, caused by the death of the 1 st defendant, to bring on record the applicants and the respondents 4 and 5 as defendants 4 to 9 in CS.No.1132 of 2009, as legal representatives of the deceased 1 st defendant and to set aside the abatement caused by the death of the 1 st defendant in the above suit, respectively.

2. The plaintiff, one P.Pappayammal has filed the suit in C.S.No. 1132 of 2009, for declaration that she is the daughter of O.V.Parthasarathy and S.V.Lakshmi Ammal and that she is the absolute owner of the property, bearing Door No. 21 / 30, Arcot Mudali Street, T.Nagar, Chennai-17 and also for recovery of possession and to nullify the sale deed, dated 07.05.2008, standing in favour of the 3 respondent, R.Usha.

3. C.S.No. 746 of 2012 has been filed by the one Chandrika Ayyar, who is the 1st defendant in CS.No.1132 of 2009, against one S.Radhakrishnan (Builder) and his wife R.Usha, who are the defendants 2 and 3 in CS.No.1132 of 2009, seeking a judgement and decree, for a sum of Rs.1,50,00,000/-, being the balance amounts due, under the Sale Agreement, dated 10.12.2007, which later culminated into a sale deed ,dated 07.05.2008 executed by the first defendant as power agent of the plaintiff in favour of his wife together with interest at 24% p.a from the date of the suit till the date of the payment and for permanent injunction, restraining the Defendatns from putting up any construction in the plaint schedule property, without paying the balance sale consideration of Rs.1,50,00,000/- and also for costs of the suit.

4. The claim of the plaintiff in C.S.No. 1132 of 2009 is that she is the sole surviving heir of the deceased, O.V.Parthasarathy and S.V.Lakshmiammal and that the 1 st defendant / Chandrika Ayyar is not the daughter of O.V.Parthasarathy.

5. It is now claimed by the Applicants that the first defendant / Chandrika Ayyar, died as spinster and intestate, and the applicants and the 4 th & 5 th respondents are her only legal heirs as per the provisions of the Hindu Succession Act and that the P.Pappayammal was not the daughter of S.V.Lakshmi Ammal, and P.Pappayammal cannot content that the applicants are not the legal heirs of the Chandrika Ayyar.

6. Similar applications filed in other suit, namely, C.S.No. 746 of 2012, were also heard together with this applications. Upon hearing the applications, this Court found that no document was produced to substantiate their relationship and the parties must entered into the witness box to prove their claim that they are the legal representatives. Consequently, the applications were posted before the learned Master for recording evidence in respect of their relationship. Now, after completion of recording of evidence the matter is posted before this Court for disposal.

7. Today, when the matter was taken up for hearing, Mr.S.Subbaiah, learned Senior Counsel appearing for Mrs.G.Sumithra, learned counsel appearing for the applicants submitted that, now the main issue to be decided in this suit is whether the plaintiff P.Pappayammal is the daughter of O.V.Parthasarathy and S.V.Lakshmiammal. Based on the decision, the other suit filed by the Chandrika Ayyar can be disposed off. In the said circumstances without prejudice to the contention of the either parties the present applications may be allowed and the present suit, namely, C.S.No.1132 of 2009, could be decided at the first instance. Thereafter, based on the findings in the above suit, the decision can be taken in the second suit. The applicants also filed a memo to that effect stating that these applications may be allowed, and without prejudice to the contention of both the parties, the

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applicants and 4 th and 5 th respondents herein may be impleaded as legal representatives of Chandrika Ayyar, and they may be permitted to file their written statements within the ambit of Order XXII Rule 4 (2) of Code of Civil Procedure.

8. Mr.A.L.Gandhimathi, learned counsel for the respondents 1 to 3 submitted that the present applications may be allowed without prejudice to their contention regarding the status of the application as a legal representatives of the deceased Chandrika Ayyar only for a limited purpose to decide the present suit. Apart from that, the present applicants may be permitted to file written statement without raising any new plea and only in accordance with Order XXII Rule 4(2) Code of Civil Procedure.

9. Considering the submissions made by the learned counsels on either side and also considering the memo filed by the applicants, these applications are allowed without prejudice to the contention of the applicants as well as the respondents regarding the status of the applicants as legal representatives of the deceased Chandrika Ayyar, and only for the limited purpose of disposing the present suit. Based on the result of this suit, the other suit in C.S.No. 746 of 2012 filed by the Chandrika Ayyar will be decided.

4

10**.** The Registry is directed to post C.S.No. 1132 of 2009, before the Additional Master III for recording evidence on 16.08.2018. After completion of recording evidence, the matter may be posted before this Court for final hearing on 20.09.2018. The plaintiff is directed to carry out the amendment in the plaint and file the amended plaint, the applicants shall file the Additional written statement on or before 06.08.2018, the plaintiff is permitted to file reply statement, if necessary, on or before 13.08.2018. No

25.07.2018

mrp/mm

costs.

V.BHARATHIDASAN.J

mm/mrp

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