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CDJ 2026 MHC 1168
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| Court : High Court of Judicature at Madras |
| Case No : S.A. (MD)No. 403 of 2015 & M.P. (MD)No. 1 of 2015 |
| Judges: THE HONOURABLE MR. JUSTICE K. MURALI SHANKAR |
| Parties : M. Mohamed Fakir Mannar Mohamed Versus M.S. Nabias & Others |
| Appearing Advocates : For the Appellant: S. Meenakshi Sundaram, Senior Counsel for N.GA. Natraj, Advocate. For the Respondents: R3, R7 & R8 to R10, R6, C. Godwin, R6, T. Selvan, Advocates, R2, No appearance, R4, Died. |
| Date of Judgment : 23-01-2026 |
| Head Note :- |
Civil Procedure Code - Section 100 -
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| Summary :- |
1. Statutes / Acts / Rules Mentioned:
- Section 100 of Civil Procedure Code
2. Catch Words:
- Appeal
- Decree
- Settlement deed
- Partition
- Power of attorney
3. Summary:
The appellant filed a second appeal under Section 100 CPC challenging the judgment and decree of the District Court dated 24.03.2015, which had affirmed the decree of the Additional Subordinate Court dated 09.12.2009. The appellant’s counsel submitted a memo correcting the erroneous record of the first respondent’s death and seeking to dispense with notice to certain respondents. The third respondent’s petition to be recognized as the devolution holder under a settlement deed was allowed. Various respondents submitted memoranda indicating no objection to the appeal and relinquishing rights under earlier settlement deeds. The sixth respondent highlighted that the lower courts had only decreed partition of properties not covered by settlement deeds and supported the appeal for a final settlement. All memoranda were recorded, and after hearing, the court found no opposition to the appeal. Consequently, the second appeal was allowed, the lower judgments were set aside, and the original suit was decreed as prayed for, with each party bearing its own costs and the related miscellaneous petition closed.
4. Conclusion:
Appeal Allowed |
| Judgment :- |
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(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree passed in A.S.No.5 of 2010 on the file of the District Court, Kanyakumari at Nagercoil, dated 24.03.2015 confirming the judgment and decree passed in O.S.No.86 of 2006 on the file of the Additional Sub Court, Nagercoil dated 09.12.2009.)
1. The Second Appeal is directed against the judgment and decree passed in A.S.No.5 of 2010 dated 24.03.2015 on the file of the District Court, Kanniyakumari at Nagercoil, confirming the judgment and decree passed in O.S.No.86 of 2006 dated 09.12.2009 on the file of the I Additional Subordinate Court, Nagercoil.
2. When the matter is taken up today, the learned Senior Counsel appearing for the appellant filed a memo dated 05.01.2026 stating that the first respondent M.S.Nabias, wrongly recorded in the Court records, as if, she is dead but she is still alive and the first respondent has no surviving interest in the second appeal and hence, notice to the first respondent may be dispensed with and that the respondents 11 to 13, who were sought to be impleaded as the legal heirs of the fifth respondent, may also be dispensed with. The said memo is recorded and hence, the earlier order recording the death of the first respondent is hereby recalled.
3. The third respondent filed a petition in C.M.P.(MD)No.16704 of to record the third respondent as devolution of interest holder of fourth respondent on the basis of the settlement deed dated 28.07.2010 executed by the fourth respondent in favour of the third respondent and the same is allowed today.
4. The respondents 3 and 7 to 10 filed a memo stating that the respondents 7 and 10 gave power of attorney to A.R.Mohamed Ali Jinnah and such power is still in force, that the learned counsel for the respondents 3 and 8 to 10 has filed vakalat for the seventh respondent through power agent A.R.Mohamed Ali Jinnah, that the seventh respondent has no objection in allowing the second appeal and decreeing the suit as prayed for and that the respondents 3 and 8 to 10 are giving up their rights obtained under Ex.A.6 to Ex.A.9 settlement deeds from late Mariyam Beevi and in view of the above, the second appeal may be allowed and the suit in O.S.No.86 of 2006 may be decreed as prayed for.
5. The learned counsel appearing for the sixth respondent filed a memo dated 21.01.2026 stating that the trial Court as well as the first appellate Court granted decree for partition only in respect of the properties not covered under the settlement deeds and decree was passed for 2/13 shares in Item Nos.1 to 4, that the appellant / plaintiff had been granted 2/13 shares in Item No.5 of the property in the first appeal and after filing of the second appeal to avoid enlargement of disputes in between the family members and to have a peaceful and final settlement, all the members agreed for allowing the second appeal and the suit may be decreed as prayed for by the appellant / plaintiff.
6. The above said Memos filed by the respondents 3 and 7 to 10 and the sixth respondent are recorded.
7. Heard the learned Senior Counsel appearing for the appellant, the learned counsel appearing for the respondents 3 and 7 to 10 and the learned counsel appearing for the sixth respondent.
8. The learned counsel appearing for the contesting respondents would submit that the respondents are not having any objections to allow the second appeal and thereby decreeing the suit in O.S.No.86 of 2006 as prayed for.
9. In the view of the above, the Second Appeal is allowed and the judgments and decrees passed by the Courts below are set aside. The suit in O.S.No.86 of 2006 on the file of the I Additional Subordinate Court, Nagercoil, is decreed as prayed for. Parties are directed to bear their own costs. Consequently connected Miscellaneous Petition is closed.
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