Annamalai vs S.Gokila
2021 Latest Caselaw 9815 Mad

                                                                                S.A.No.377 of 2021




                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                Dated : 17.04.2021
                                                      Coram
                                    THE HONOURABLE MR. JUSTICE M.SUNDAR
                                                S.A.No.377 of 2021


                  1. Annamalai
                     S/o.Natraya Chettiar

                  2. Nirmala
                     W/o.Viswanathan                                      .. Appellants

                                                         Vs.

                  1. S.Gokila
                     W/o.Soundararajan

                  2. M.Chitra
                     W/o.Mahalingam

                  3. Sagunthala
                     W/o.Palanisamy                                       .. Respondents

                            Second Appeal under Section 100 of CPC to set aside the judgement
                  and decree dated 05.02.2020 passed in A.S.No.39 of 2019 on the file of the I
                  Additional District and Sessions Judge, Salem, reversing the judgment and
                  decree dated 12.12.2018 passed in O.S.No.405 of 2014 on the file of II
                  Additional Sub Judge, Salem.
                            For Appellants        :     Mr.P.Jagadeesan
                                                      ----

                 1/10
https://www.mhc.tn.gov.in/judis/
                                                                                    S.A.No.377 of 2021




                                                JUDGMENT

Two concurrent judgments/decrees by the Court of first instance (Trial

Court) and the First Appellate Court have brought defendants 1 & 3 in the

Court of first instance to this Court as appellants 1 & 2 in captioned Second

Appeal which is under Section 100 of 'The Code of Civil Procedure, 1908'

['CPC' for brevity].

2. This litigation amongst siblings (one son and four daughters of one

Natraya Chettiar) commenced more than half a decade ago, to be precise on

07.10.2014 when two daughters of Natraya Chettiar presented a plaint on the

file of 'II Additional Sub-Judge's Court, Salem' [hereinafter 'trial Court' for

the sake of convenience and clarity] with prayers inter-alia for partition and

separate possession of 1/5th share in a house property i.e., land admeasuring

1369 sq.ft thereabouts and superstructure thereon in Neikarapatty Village in

Salem Taluk, Salem District. This suit was taken on file as O.S.No.405 of

2014. In this suit, two daughters of Natraya Chettiar arrayed one of their

brothers Annamalai and two other sisters as three defendants. To be noted,

Natraya Chettiar's wife and another son Ramachandran had released their

https://www.mhc.tn.gov.in/judis/ S.A.No.377 of 2021

shares in suit property in favour of Annamalai/first defendant and therefore

they were not added as parties to the suit is the pleading. The suit was

resisted by way of a very interesting pleading in the written statement of first

defendant (adopted by third defendant) as it was pleaded that the plaint

averments are partly true and partly false. The pleading is to the effect

father of siblings turned adversaries, Natraya Chettiar purchased the suit

property as a vacant site in and by a registered sale deed dated 12.03.1986

registered as document No.274/1986 in the jurisdictional registration office,

but it is false to say that he put up a tiled house now standing on the same.

Second plaintiff and first defendant examined themselves as P.W.1 and

D.W.1 respectively before trial Court. Three exhibits on the side of plaintiffs

namely, Ex.A1 to Ex.A3 were marked and two exhibits namely, Ex.B1 &

Ex.B2 were marked on the side of defendants before the trial Court. After

full contest, trial Court decreed the suit albeit by passing a preliminary

decree for partition of 1/7th share each (as opposed to 1/5th share prayer).

The trial Court passed this preliminary decree on the basis of a release deed

dated 18.08.2004 marked as Ex.A2 wherein Natraya Chettiar's wife Lakshmi

and non-litigant son Ramachandran released their 2/7th shares and on the

https://www.mhc.tn.gov.in/judis/ S.A.No.377 of 2021

basis of evidence before it. Trial Court came to the conclusion that shares of

plaintiffs cannot be defeated or reduced by first defendant on the basis of this

release deed. With regard to partly true and partly false pleadings of

defendants, the trial Court on appreciation of oral and documentary evidence,

more particularly Ex.A2 held that Natraya Chettiar's wife Lakshmi and non-

litigant son Ramachandran had received Rs.50,000/- towards their shares and

it is not the case of plaintiffs that they also contributed for paying the said

amount to Ramachandran and Lakshmi.

3. Defendants 1 & 3 carried the matter in appeal by way of a regular

First Appeal under Section 96 of CPC to the 'I Additional District and

Sessions Judge's Court, Salem' [herienafter 'First Appellate Court' for the

sake of convenience and clarity] vide A.S.No.39 of 2019. To be noted,

second defendant in trial Court Sakunthala was arrayed as third defendant in

first appeal. After full contest, the first appeal was dismissed in and by

judgment dated 05.02.2020 by the First Appellate Court. First Appellate

Court held that the trial Court in its judgement has given clear/cogent

reasons, more particularly, in paragraph Nos.11 and 12 as to why the heirs of

https://www.mhc.tn.gov.in/judis/ S.A.No.377 of 2021

Natraya Chettiar are entitled to equal share. First Appellate Court also dealt

with the plea that though the suit property was purchased by Natraya

Chettiar, only first defendant Annamalai, non-litigant Ramachandran and

mother are entitled to the same as even during his lifetime the daughters were

given in marriage by expending substantial sums of money. First Appellate

Court has come to the conclusion that absent any testament to this effect (the

factual finding is that Natraya Chettiar died intestate) these pleadings cannot

be sustained. This is articulated by First Appellate Court in Paragraph

Nos.10 & 11 of judgment which read as follows:

'10) jhth brhj;J thjpfs; kw;Wk; gpujpthjpfspd; jfg;gdhuhy; fpuaj;jpw;F th';fg;gl;lJ vd;gij gpujpthjpfs; kWf;ftpy;iy/ jhth brhj;J 1k; gpujpthjpf;Fk;. mtuJ rnfhjuh; uhkre;jpuDf;Fk; mtuJ jhahuhd yl;Rkp vd;gtUf;Fk; kl;Lnk ghj;jpag;gl;lJ vd;Wk;. ehl;uha brl;oahh; capUld; ,Ue;j fhyfl;lj;jpnyna rfy rPh;thpirfSk; bfhLj;J ey;y tifapy; jpUkzk; bra;J tpl;ljhy; bgz; kf;fSf;F jhth brhj;jpy; chpikapy;iy vd;Wk;. jhth brhj;ij 1k; gpujpthjpf;F kl;Lnk bfhLf;f ntz;Lk; vd;gjd; mog;gilapy;jhd; ehl;uha brl;oahhpd; kw;bwhU kfdhd uhkre;jpuDk;. jhahh; yl;Rkpa[k;

                            nrh;e;J        U:/30.000-?         kjpg;gs
                                                                     [ ;s       jhth      brhj;jpYs;s


https://www.mhc.tn.gov.in/judis/
                                                                                       S.A.No.377 of 2021

ghj;jpaj;ijg;bghWj;J tpLjiy gj;jpuk; vGjp bfhLj;Js;shh;fs; vd;Wk;. mjdhy; jhth brhj;J 1k; gpujpthjpf;F kl;Lnk ghj;jpag;gl;llJ vd;Wk; gpujpthjpfs; jug;gpy; vLj;Jiuf;fg;gl;lJ/

11) ,Ujug;gpy; Kd;dplg;gl;Ls;s rhl;rpfisa[k;. Mtz';fisa[k; ghprPyid bra;j tprhuiz ePjpkd;wk; jhth brhj;jhdJ ehl;uha brl;oahUf;F kl;Lnk ghj;jpag;gl;lJ vd;gij xj;Jf;bfhz;L 9-1-99k; njjpad;W capy; vJt[k; vGjp itf;fhknyna ,we;Jtpl;ljhy; ehl;uha brl;oahhpd; thhpRfshd thjpfs;. gpujpthjpfs; kw;Wk; ehl;uha brl;oahhpd; kidtp yl;Rkp. ehl;uha brl;oahhpd; kw;bwhU kfd; uhkre;jpud; vd 7 egh;fSf;F jhth brhj;jpy; ghj;jpak; cs;sJ vd;W jPh;khdpj;J. mjd; mog;gilapy; thjpfSf;F jyh 1-7 g';F ghj;jpak; cs;sJ vd;W Kot[ bra;J. thjpfs; ,UtUf;Fk; 2-7 ghfk;

fpilf;fj;jf;ffJ vd;W Kjy;epiy jPh;gg; hiz tH';fpa[s;sJ/'

4. This takes us to the question proposed as substantial question of law

i.e., question (d) which turns on the 'Hindu Succession (Amendment) Act,

2005' [hereinafter 'said Act' for the sake of convenience and clarity]. This is

clearly a non-starter owing to undisputed dates of marriage of daughters.

Owing there being no disputation on dates in this regard it is not necessary to

dilate much on this and it will suffice to say that the date of coming into

https://www.mhc.tn.gov.in/judis/ S.A.No.377 of 2021

force of said Act and the dates of marriage of daughters draws the curtains on

this. Be that as it may, the other three questions clearly turn on facts all of

which have been dealt with by the trial Court/First Appellate Court and there

is nothing demonstrable warranting interference under Section 100 of CPC.

5. Therefore, applying Kanailal principle being law laid down by

Hon'ble Supreme Court in Kanailal and others Vs. Ram Chandra Singh

and others reported in (2018) 13 SCC 715 read in conjunction with Kirpa

Ram principle being the law laid down by Hon'ble Supreme Court in Kirpa

Ram Vs. Surendra Deo Gaur and others reported in 2020 SCC Online SC

935, this Court deems it appropriate to set out that the lone point for

determination that arises in captioned Second Appeal is whether any

substantial question of law arises on the aforementioned fact setting and

trajectory of the case in the Courts below. To be noted, Kanailal principle, is

principles underlying Order XLI Rule 31 of CPC stand telescoped into a

Section 100 CPC legal drill and Kirpa Ram principle is a Second Appeal

Court can dismiss the Second Appeal at the admission stage without

formulating a substantial question of law if none arises on the facts, findings

https://www.mhc.tn.gov.in/judis/ S.A.No.377 of 2021

and arguments canvassed by protagonist/s of the second appeal.

6. This Court also reminds itself about the elucidation of expression

'substantial question of law' occurring in Section 100 CPC which has been

lucidly explained in a long line of authorities commencing from

Rimmalapudi Subba Rao 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]. Suffice to say that broadly stated but in a nutshell that on facts of

a given case on hand, whether any debatable question or any question that

turns on a settled principle being disregarded arises for consideration is the

litmus test for examining whether a question is a substantial question of law.

This is to avoid burdening this judgment with extracts from case laws in this

long line of authorities. In the light of the narrative thus far, the answer is

clearly in the negative. Therefore this is the answer to the point for

consideration and reasons are dovetailed in the narrative thus far. In the light

of this the inevitable sequitur is, captioned Second Appeal is dismissed at the

admission stage on the ground that no substantial question of law, much less

https://www.mhc.tn.gov.in/judis/ S.A.No.377 of 2021

questions proposed by protagonists of Second Appeal as substantial

questions of law arise. Owing to the relationship between the parties i.e.,

nature of the matter and in the light of the submissions made before this

Court, there shall be no order as to costs.

17.04.2021

Speaking/Non-speaking order Index : Yes / No Internet : Yes / No

mk

To

1. II Additional Sub-Judge, II Additional Sub Court, Salem.

2. I Additional District and Sessions Judge, I Additional District and Sessions Court, Salem.

https://www.mhc.tn.gov.in/judis/ S.A.No.377 of 2021

M.SUNDAR. J

mk

S.A.No.377 of 2021

17.04.2021

https://www.mhc.tn.gov.in/judis/