Madras High Court
Latha vs Amutha on 23 April, 2021
S.A.No.390 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 23.04.2021
Coram
THE HONOURABLE MR. JUSTICE M.SUNDAR
S.A.No.390 of 2021
and
C.M.P.No.7447 of 2021
Dhatchayani Ammal (died)
W/o.Sivakozhunthu
1. Latha
W/o.Late Sankar
Sivabalan (died)
S/o.Late Sakar
2. Suganya
D/o.Late Sankar
3. Priya
D/o.Late Sankar .. Appellants
Vs.
1. Amutha
W/o.Venugopal
Sumathy (died)
2. Renganathan
S/o.Sivagangai
3. Vinoth
1/14
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S.A.No.390 of 2021
S/o.Renganathan
4. Parthiban
S/o.Rengaathan
5. Surender
S/o.Renganathan .. Respondents
Second Appeal under Section 100 of CPC to set aside the judgement
and decree dated 22.07.2020 passed in A.S.No.57 of 2017 on the file of the
Court of the Principal District Judge, Cuddalore, reversing the judgment and
decree dated 07.11.2016 passed in O.S.No.48 of 2008 on the file of Court of
Subordinate Judge, Panruti.
For Appellant : Mr.R.Venkatajalapathy
----
JUDGMENT
Litigation which has led to the captioned second appeal commenced
nearly 12 years ago, to be precise on 21.04.2008 when two individuals
Amutha and Sumathy sisters and daughters of one Sivakozhunthu filed a suit
claiming 1/4th share each in their father's property. This suit was laid by
saying that plaintiffs' father Sivakozhunthu died intestate in 1994 leaving
behind the two plaintiffs (daughters), wife Dhatchayani Ammal (first
defendant) and son Sankar (second defendant) as legal heirs. In other words,
it is the specific case of plaintiffs that Sivakozhunthu died intestate in 1994
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S.A.No.390 of 2021
leaving behind four legal heirs, who are class-I legal heirs, they are entitled
to 1/4th share each. Pending suit, second defendant died and his legal heirs
were brought on record as defendants 3 to 6. This suit was resisted by
defendants on the pivotal ground that the suit properties are not self-acquired
properties of Sivakozhunthu, but are ancestral properties.
2. It is the specific case of plaintiffs that the suit properties were
purchased by their father Sivakozhunthu from one Venkatrama Iyer in and by
a registered sale deed dated 06.03.1969 (Ex.A1). In the trial Court, the first
plaintiff Amutha examined herself as P.W.1 and four documents i.e., Ex.A1,
legal notice, acknowledgment cards and returned envelope (Ex.A2, Ex.A3 &
Ex.A4 respectively) were marked. Interestingly and intriguingly, on the side
of defendants no oral evidence was let in and no documents were marked.
This suit is O.S.No.48 of 2008 on the file of 'Subordinate Judge's Court,
Panruti' [hereinafter 'trial Court' for the sake of convenience and clarity].
The trial Court, dismissed the suit in and by judgment and decree dated
07.11.2016 on the teeth of 06.03.1969 (Ex.A1) sale deed under which
Sivakozhunthu purchased suit properties from a third party.
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S.A.No.390 of 2021
3. Plaintiffs carried the matter in appeal by way of a regular First
Appeal under Section 96 of 'The Code of Civil Procedure, 1908' ['CPC' for
brevity] vide A.S.No.57 of 2017 to the 'Principal District Judge's Court,
Cuddalore' [hereinafter 'First Appellate Court' for the sake of convenience
and clarity]. The First Appellate Court, went into the question as to whether
the suit properties are self-acquired properties of Sivakozhunthu or whether
it was purchased by Sivakozhunthu's father. The First Appellate Court
returned a finding that there is nothing to demonstrate that the suit properties
are ancestral properties and allowed the appeal suit partly by decreeing 2/3rd
shares in favour of plaintiffs (1/3rd share each to two plaintiffs). To be
noted, this is because mother Dhatchayani Ammal died pending appeal suit
and therefore four legal heirs became three legal heirs.
4. Defendants not having let in any oral and documentary evidence in
trial Court attempted to set the clock right by moving an application under
Order XLI Rule 27 of CPC. This was taken on file as I.A.No.120 of 2019 in
A.S.No.57 of 2017.
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S.A.No.390 of 2021
5. The prayer in the above said IA was negatived in the judgment and
decree along with main appeal suit.
6. A perusal of IA petition reveals that four documents were sought to
be marked as additional evidence, one document is already there before the
trial Court namely, registered sale deed dated 06.03.1969 (Ex.A1) under
which Sivakozhunthu purchased the suit properties from one Venkatrama
Iyer and thereafter, there are two documents, both of which were post
06.03.1969 and description itself demonstrates that they are documents
executed by Sivakozhunthu and not in favour of Sivakozhunthu, only one of
the four documents is prior to 06.03.1969 and that also is a settlement deed
in favour of Datchayani Ammal by one Manonmani. Therefore, in the
considered opinion of this Court, First Appellate Court was right in invoking
the principles governing Order XLI Rule 27 CPC i.e., the three determinants
necessary for entertaining a plea under Order XLI Rule 27. To be noted the
three determinants are (a) It should be established that inspite of best efforts
additional evidence could not be adduced in the Court of first instance (b) A
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S.A.No.390 of 2021
party to be affected by the admission of additional evidence should have the
opportunity to rebut such additional evidence and more importantly and (c)
Additional evidence should be relevant for the determination of the issue and
law in this regard has been laid down in Shivajirao Nilangekar case
[Shivajirao Nilangekar Patil Vs. Mahesh Madhav Gosavi reported in AIR
1987 SC 294]. In this case, the four documents that were sought to be
marked as additional evidence and adumbration of the same has already been
considered supra. Only one document is prior to 06.03.1969 i.e.,settlement
deed dated 11.08.1956 and that is also in favour of Datchayani Ammal and
not in favour of Sivakozhunthu. Therefore, it is obvious that these additional
four documents even if brought on record and proved in a manner known to
law, cannot in any manner go to establish that the suit properties are ancestral
properties of Sivakozhunthu and not self-acquired properties. To be noted, it
is the case of plaintiffs that Sivakozhunthu purchased the suit properties
under Ex.A1 dated 06.03.1969. Therefore, this Court finds no error on the
part of the First Appellate Court in negativing the plea under Order XLI Rule
27. This plea having been negatived, give rise to the question as to whether
the properties are ancestral properties or self-acquired properties of
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S.A.No.390 of 2021
Sivakozhunthu as there is nothing demonstrable on the part of defendants to
show that it is the ancestral properties. The First Appellate Court has rightly
allowed the appeal in respect of properties holding that the suit properties are
self-acquired properties and distributed the same in the ratio of 1/3rd share
each as by the time of disposal there were only three class I legal heirs, one
class I legal heir on the date of succession in 2019 also died pending suit. In
the light of the narrative thus far, the two points for determination that arise
in the captioned Second Appeal are:
(a) Whether the First Appellate Court erred in returning
the factual finding that the suit properties are self acquired
properties of Sivakozhunthu?
(b) Whether any substantial question of law arises in the
captioned Second Appeal?
7. To be noted, this Court, on a conjoint and combined reading of
Kanailal and Kirpa Ram principles, considers it appropriate to set out the
aforementioned two points for determination. It is further to be noted that
Kanailal principle is to the effect that the principles underlying Order XLI
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S.A.No.390 of 2021
Rule 31 CPC have to be telescoped into a Section 100 CPC legal drill and
Kirpa Ram principle is to the effect that Court exercising jurisdiction under
Section 100 CPC can dismiss a Second Appeal at the admission stage
without formulating any substantial question of law, if no substantial
question of law arises.
8. This Court having set out two points for determination that arise in
captioned Second Appeal reminds itself about what the expression
'substantial question of law' occurring in Section 100 CPC means. This
expression is not defined in CPC but has been elucidatively explained in a
long line of authorities commencing from Rimmalapudi Subba Rao's case
[Rimmalapudi Subba Rao Vs. Noony Veeraju and others reported in AIR
1951 Mad 969 (FB)] to Santosh Hazari's case [Santosh Hazari Vs.
Purushottam Tiwari reported in (2001) 3 SCC 179]. To be noted, the
Rimmalapudi principle has been subsequently approved by a Constitution
Bench of Hon'ble Supreme Court in Sir Chunilal V.Mehta Vs. Century
Spinning and Manufacturing Co. Ltd. reported in AIR 1962 SC 1314.
Thereafter, in Santosh Hazari case being Santosh Hazari Vs. Purushottam
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S.A.No.390 of 2021
Tiwari reported in (2001) 3 SCC 179, the view taken in Chunilal Mehta's
case, affirming the view taken by Full Bench of this Court, was reiterated.
Relevant paragraphs of Chunilal Mehta's case and Santosh Hazari's case
are paragraph Nos.6 & 12 respectively, which read as follows:
Paragraph No.6 of Chunilal Mehta's case:
'6. We are in general agreement with the view taken by the
Madras High Court and we think that while the view taken by the
Bombay High Court is rather narrow the one taken by the former
High Court of Nagpur is too wide. The proper test for determining
whether a question of law raised in the case is substantial would, in
our opinion, be whether it is of general public importance or
whether if directly and substantially affects the rights of the parties
and if so whether it is either an open question in the sense that it is
not finally settled by this Court or by the Privy Council or by the
Federal Court or is not free from difficulty or calls for discussion of
alternative views. If the question is settled by the highest court or
the general principles to be applied in determining the question are
well settled and there is a mere question of applying those
principles or that the plea raised is palpably absurd the question
would not be a substantial question of law.'
Paragraph No.12 of Santosh Hazari's case:
'12. The phrase “substantial question of law”, as occurring
in the amended Section 100 is not defined in the Code. The word
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S.A.No.390 of 2021
substantial, as qualifying “question of law”, means — of having
substance, essential, real, of sound worth, important or
considerable. It is to be understood as something in
contradistinction with — technical, of no substance or
consequence, or academic merely. However, it is clear that the
legislature has chosen not to qualify the scope of “substantial
question of law” by suffixing the words “of general importance”
as has been done in many other provisions such as Section 109 of
the Code or Article 133(1)(a) of the Constitution. The substantial
question of law on which a second appeal shall be heard need not
necessarily be a substantial question of law of general
importance. In Guran Ditta v. T. Ram Ditta [AIR 1928 PC 172 :
55 IA 235] , the phrase “substantial question of law” as it was
employed in the last clause of the then existing Section 110 CPC
(since omitted by the Amendment Act, 1973) came up for
consideration and their Lordships held that it did not mean a
substantial question of general importance but a substantial
question of law which was involved in the case as between the
parties. In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. and
Mfg. Co. Ltd. [AIR 1962 SC 1314 : 1962 Supp (3) SCR 549] the
Constitution Bench expressed agreement with the following view
taken by a Full Bench of the Madras High Court in Rimmalapudi
Subba Rao v. Noony Veeraju [ILR 1952 Mad 264 : AIR 1951 Mad
969] :
“[W]hen a question of law is fairly arguable, where
there is room for difference of opinion on it or where the
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S.A.No.390 of 2021
Court thought it necessary to deal with that question at
some length and discuss alternative views, then the
question would be a substantial question of law. On the
other hand if the question was practically covered by the
decision of the highest court or if the general principles
to be applied in determining the question are well settled
and the only question was of applying those principles to
the particular facts of the case it would not be a
substantial question of law.”
and laid down the following test as proper test, for determining
whether a question of law raised in the case is substantial:
“The proper test for determining whether a question of
law raised in the case is substantial would, in our
opinion, be whether it is of general public importance or
whether it directly and substantially affects the rights of
the parties and if so whether it is either an open question
in the sense that it is not finally settled by this Court or
by the Privy Council or by the Federal Court or is not
free from difficulty or calls for discussion of alternative
views. If the question is settled by the highest court or the
general principles to be applied in determining the
question are well settled and there is a mere question of
applying those principles or that the plea raised is
palpably absurd the question would not be a substantial
question of law.”'
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S.A.No.390 of 2021
9. This Court, has already discussed the reasoning as to how the First
Appellate Court is correct under Order XLI Rule 27 and as to how there is no
error on the part of the First Appellate Court in returning the factual finding
that suit properties are self-acquired properties of Sivakozhunthu. This
answers the first point for determination. With regard to second point for
determination the narrative and reasoning thus far, makes it clear that there is
no substantial question of law much less 'substantial question of law' as
elucidated by long line of authorities arises, in the captioned Second Appeal.
10. Therefore captioned Second Appeal is dismissed at the admission
stage holding that no substantial question/s of law arise/s. Consequently,
CMP is also dismissed. Considering the blood relationship between the
parties and the nature of submissions made before this Court, there shall be
no order as to costs.
23.04.2021
Speaking/Non-speaking order
Index : Yes / No
Internet : Yes / No
mk
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S.A.No.390 of 2021
To
1. The Subordinate Judge,
Sub-Court, Panruti.
2. The Principal District Judge,
District Court, Cuddalore.
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S.A.No.390 of 2021
M.SUNDAR. J
mk
S.A.No.390 of 2021
23.04.2021
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