Madras High Court
Anngelin Mohana Edwin vs Danley Edith Justin on 6 August, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.08.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.42 of 2014
And
M.P.(MD).No.1 of 2014 & CMP(MD)No.8035 of 2017 in
Cros.Obj(MD)No.SR31544 of 2017
Anngelin Mohana Edwin ... Appellant
Vs.
1.Danley Edith Justin
2.Daise Titus
3.Ms.Mercy Paul ... Respondents
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the Judgment and Decree passed in A.S.No.38 of 2007 on the file
of District Judge, Kanyakumari at Nagercoil dated 22.10.2010
confirming the judgment and Decree in O.S.No.200 of 1999 on the file of
the First Additional Sub Judge, Nagercoil, dated 09.03.2007.
For Appellant : Mr.C.K.M.Appaji
For Respondents : Mr.V.Meenakshi Sundaram
For Mr.D.Nallathambi.
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JUDGMENT
The defendant in O.S.No.200 of 1999 on the file of First
Additional Sub Judge, Nagercoil is the appellant in this Second Appeal.
The suit was for partition.
2.The suit schedule properties belonged to the father of the parties
herein, namely, A.T.Paul. He passed away on 10.01.1986, leaving
behind wife Danispaul and four daughters, the parties herein as his legal
heirs. Since the parties are Christians, one third share in all the five
items devolved on the widow, namely, Danispaul. She passed away on
30.06.1996. It is stated that during her life time, she executed a gift deed
dated 07.05.1993 settling her 1/3rd share in the first item in favour of the
first plaintiff. She also executed release deed dated 11.01.1994 in favour
of the second plaintiff relinquishing her 1/3rd share in Item No.2. She
also executed a Will dated 03.06.1993 bequeathing her one third share in
items 3 to 5 in favour of the third plaintiff. According to the plaintiffs,
while they were given their mother's one third share, the appellant herein
got her blessings. The partition suit was filed on the strength of their
independent share coupled with the interest derived from the mother.
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3.The appellant herein filed her written statement controverting the
plaint averments. Based on the divergent pleadings, the trial court
framed the necessary issues. The first plaintiff examined herself as PW.1
and marked Ex.A1 to A27. The appellant examined herself as DW.1 and
marked Ex.B1 to B12. After consideration of the evidence on record, the
learned trial Judge concluded that the gift deed/Ex.A2 dated 07.05.1993
and the Will/Ex.A5 dated 03.06.1993 have not been proved. However,
the Trial Court held that the deed of relinquishment Ex.A3 dated
11.01.1994 is genuine. Therefore, the second plaintiff was granted 1/4th
share in the second item while the other plaintiffs and the appellant were
given 1/6th share in the second item. In respect of the remaining four
items, all the parties were held entitled to 1/4th share each. Challenging
the judgment and decree passed by the Trial Court on 09.03.2007, the
defendant filed A.S.No.38 of 2007 before the Principal District Court,
Kanyakumari District at Nagercoil. The respondents herein also filed
A.S.No.56 of 2007. Both the appeals were heard together and dismissed
by the impugned judgment and decree dated 22.10.2010. The appellant
herein filed SA(MD)No.42 of 2014 questioning the impugned judgment
and decree passed by the first appellate court. The respondents failed to
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file any independent Second Appeal. Instead they filed Cross Appeal in
the year 2017. They also filed CMP(MD)No.8035 of 2017 for
condoning the delay. The cross objection was not filed in time. There is
a delay of 1705 days in filing the same. I went through the affidavit filed
in support of the condone delay petition. No sufficient cause has been
made out. CMP(MD)No.8035 of 2017 is dismissed.
4.The Second Appeal was admitted on the following substantial
questions of law :
• Whether the release deed executed by a coparcener
on her undivided interest in the coparcener’s
property is enforceable?
• When the mortgage in respect of one of the family
properties is in subsistence, non-inclusion of the said
property in the partition suit amounts to partial
partition?
• Whether the partition suit is hit by non-joinder of
necessary party?
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5.The counsel for the appellant reiterated all the contentions set out
in the memorandum of grounds and called upon this Court to answer the
substantial questions of law in favour of the appellant and set aside the
impugned judgments and decrees. Per contra, the learned counsel for the
respondents submitted that the impugned judgments and decrees passed
by the courts below do not warrant any interference and called for
dismissal of this second appeal.
6.I carefully considered the rival contentions and went through the
evidence on record. I now proceed to pass this oral order in the presence
of the counsel on either side in the open court.
7.The Courts below have concurrently rendered a finding that
Ex.A3 dated 11.01.1994 was validly executed. This is a pure finding of
fact. The appellant has not been able to show that this finding is perverse.
Nothing has been brought out in this second appeal to dislodge the said
finding. It is relevant to note that though the plaintiffs projected as many
as three documents as having emanated from their mother, the trial court
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upheld only the release deed and rejected the other two. There has been
application of mind on the part of the trial court. The first appellate court
has also endorsed the said finding. Exercising jurisdiction under Section
100 of CPC, I decline to the upset the said finding.
8.The primary contention of the learned counsel appearing for the
appellant is that Danispaul, the mother of the parties herein could have
only relinquished her 1/3rd right and interest in the suit items only in
favour of all the daughters and she could not have been selective in the
choice of the beneficiary. In other words, she could not have released his
share in favour of one particular daughter. This contention would have
been correct if the parties were coparceners. The concept of coparcenary
will have no application in the case of Christians. When the parties are
Christians, such a plea cannot be advanced. Ex.A3 was not executed by
a coparcener. The substantial question of law had been framed on an
erroneous assumption. I, therefore, answer the first substantial question
of law against the appellant.
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9.The learned counsel would strongly contend that the suit is bad
for partial partition. It is true that one of the family properties was not
included in the suit schedule. But, as rightly pointed out by the learned
counsel for the respondents, the property had been mortgaged in favour
of the husband of the first plaintiff on 16.03.1970. To redeem the same,
the defendant filed O.S.No.216 of 1999. The suit was dismissed for
default. The right of redemption also got extinguished in the year 2005.
Thereafter, the husband of the first plaintiff became the owner of the said
property. The suit property itself is not available for partition. Hence, the
suit cannot be said to be bad for partial partition. The 2 nd and 3rd
substantial questions of law are answered against the appellant. The
impugned judgments and decrees passed by the courts below are
confirmed. Accordingly, this Second Appeal stands dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
06.08.2021
Index : Yes / No
Internet : Yes/ No
skm
https://www.mhc.tn.gov.in/judis
Note :In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but, ensuring
that the copy of the order that is presented is the
correct copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. The First Additional Sub Judge, Nagercoil.
2.The District Judge, Kanyakumari at Nagercoil.
Copy to:
The Record Keeper, V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN, J.
skm
S.A.(MD)No.42 of 2014
06.08.2021
https://www.mhc.tn.gov.in/judis
