Velu Pillai vs Chandra Alias Sirumbayee
2021 Latest Caselaw 16920 Mad

                                                                                  S.A.(MD)No.862 of 2005


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                    DATED : 18.08.2021

                                                          CORAM

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                                   S.A.(MD)No.862 of 2005

                Velu Pillai                                                  ... Appellant

                                                            Vs.
                1.Chandra alias Sirumbayee
                2.Silambayee
                3.Raju Ammal
                4.Dhanalakshmi                                               ... Respondents


                Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,

                against the judgment and decree in A.S.No.19 of 2004 on the file of the

                Subordinate Court, Kulithalai, dated 24.09.2004 in confirming the judgment

                and decree in O.S.No.17 of 2001 dated 18.03.2004 on the file of the District

                Munsif Court, Kulithalai.



                                   For Appellant      : Mr.V.Singam

                                   For Respondents : Mr.P.Thiagarajan for R1

                                                        Mr.K.Govindarajan for R2 to R4

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                                                                               S.A.(MD)No.862 of 2005




                                                  JUDGEMENT

The plaintiff in O.S.No.17 of 2001 on the file of the District Munsif

Court, Kulithalai is the appellant in this second appeal. The suit was for

partition. The case of the appellant is that the suit property belonged to one

Ramasamy. Ramasamy got married to one Chinnammal. A daughter by name

Amirtham was born through the said wedlock. Chinnammal later passed away.

Thereafter, Ramasamy got married to one Pappammal and through her begot as

many as four children namely., Silambayee, Raju Ammal, Sivachiambaram and

Dhanalakshmi. Amirtham born through Chinnammal also passed away. The

plaintiff/Velu Pillai and the first defendant/Sirumbayee are the children born to

Amirtham. According to him, the suit property was never partitioned. Since

the children born through the second wife were not coming forward for an

amicable partition, the said suit came to be instituted. The defendants filed

written statement controverting the plaint averments. Though in the plaint, the

plaintiff had admitted that the defendants 2 to 4 are the children born to

Ramasamy and Pappammal, the contesting defendants did not accept that

Ramasamy had a wife by name, Chinnammal or that a daughter by name

Amirtham was born to them. In other words, tracing of ancestry by the plaintiff

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S.A.(MD)No.862 of 2005

to Ramasamy was contested. Based on the rival pleadings, the trial Court

framed the necessary issues.

2.The plaintiff examined himself as P.W.1 and one Subramaniyapillai, a

villager elder was examined as P.W.2. Exs.A1 to A6 were marked. The second

defendant examined herself as D.W.1 and one Muruganantham was examined

as D.W.2. Exs.B1 and B2 were also marked.

3.After a consideration of the evidence on record, the trial Court by

judgment and decree dated 18.03.2004 dismissed the suit. Challenging the

same, the plaintiff filed A.S.No.19 of 2004 before the Sub Court, Kulithalai.

The first appellate Court by the impugned judgment and decree dated

29.04.2004 dismissed the appeal. Questioning the same, this second appeal

came to be filed.

4.The second appeal was admitted on the following substantial questions

of law:-

“1.Whether the plaintiff being the grandson of Ramasami through his daughter Amirtham is entitled to a share in the suit properties?

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S.A.(MD)No.862 of 2005

2.Whether the decree and judgment of the appellate Court is sustainable in law, especially when the first appellate Court having come to the conclusion that the plaintiff is the heir of Ramasami through his daughter Amirtham? and

3.Whether the plaintiff's mother Amirtham, being the daughter of Ramasami is entitled to a share in the suit property and if so, whether it will not devolve upon the plaintiff?”

5.The learned counsel for the appellant drew my attention to the findings

given by the first appellate Court in paragraph No.10 of its judgment. The first

appellate Court had given a finding that the plaintiff and the first defendant are

the grand children of Ramasamy and that their mother namely., Amirtham was

born to Ramasamy and Chinnammal. However, the first appellate Court came

to the conclusion that the plaintiff will not have right in the suit property.

Because he was the son born through the daughter of Ramasamy, he cannot be

considered as a member of joint family. The learned counsel for the appellant

pointed out that this reason can no longer stand. He also pointed out that even

though the trial Court had held that the claim of the plaintiff that Chinnammal

was the first wife of Ramasamy was not proved, the first appellate Court had

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S.A.(MD)No.862 of 2005

accepted the status claimed by the plaintiff and that the contesting defendants

did not file any cross appeal.

6.Per contra, the learned counsel for the respondents submitted that he is

very much entitled to challenge the aforesaid finding rendered by the first

appellate Court in the impugned judgment and he is not obliged to file any

cross appeal. The learned counsel for the respondents invoked Order 41 and

Rule 33 of CPC in support of his contention. He submitted that no substantial

question of law really arises for consideration.

7.I carefully considered the rival contentions and went through the

evidence on record.

8.The specific case of the plaintiff is that he is the grandson of

Ramasamy, the father of the contesting respondents herein. According to him,

Ramasamy originally married one Chinnammal and through the said wedlock,

his mother namely., Amirtham was born. Later Chinnammal passed away and

thereafter, Ramasamy got married to Pappammal, the mother of the contesting

respondents herein. Even though the plaintiff had conceded that the contesting

respondents were born to Ramasamy, the respondents did not reciprocate the

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S.A.(MD)No.862 of 2005

gesture. They disputed the claim of the plaintiff that Ramasamy had a first wife

by name Chinnammal or that a daughter Amirtham born to them. The plaintiff

had not adduced any satisfactory evidence before the trial Court. Therefore, the

trial Court had negatived the said claim putforth by the plaintiff. The trial

Court had rendered a categorical finding that the claim that Ramasamy had a

first wife by name Chinnammal had not at all been established. The first

appellate Court had accepted the version given by the plaintiff on the strength

of Ex.A1. Ex.A1 is only a genealogy. Any genealogy will have to be proved. It

cannot be taken as a gospel truth on the face of it. The first appellate Court

without assigning any reason had mechanically accepted the case projected by

the appellant on its face value. Even though the reason assigned by the first

appellate Court for non-suiting the plaintiff may not be correct, still I must

hold that the foundational facts have not at all been established by the plaintiff.

Before the first appellate Court, the plaintiff marked Ex.A7. Ex.A7 is a birth

certificate. From the contents of Ex.A7, one can notice that a girl child was

born to Ramasamy Pillai and one Chinnammal, who were residing at

Thaliyampatti on 01.12.1915 and it was registered on 06.12.1915. Of course,

the learned counsel for the appellant is right in his contention that during the

relevant time, the practice of entering the name of the child was not there and

only the gender alone will be mentioned. As rightly pointed out by the learned

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S.A.(MD)No.862 of 2005

counsel for the respondents, Ex.A7 was straight away marked without

following the procedure set out under Order 41 Rule 28 of CPC. It has not

been established that Ex.A7 pertains to Amirtham, the mother of the plaintiff.

Though the respondents have not filed any cross appeal against the finding

rendered by the first appellate Court, still in view of Order 41 and Rule 23 of

CPC, they are very much entitled to impeach the aforesaid finding set out in

Paragraph No.10 of the impugned judgment of the first appellate Court. The

said finding is vacated. No substantial question of law arises for consideration.

The second appeal is dismissed. No costs.

                                                                               18.08.2021
                Index              : Yes / No
                Internet           : Yes/ No
                ias

                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 Sub Court, Kulithalai

2.The District Munsif Court, Kulithalai.

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S.A.(MD)No.862 of 2005

G.R.SWAMINATHAN, J.

ias

Copy to:

The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.

S.A.(MD)No.862 of 2005

18.08.2021

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