Madras High Court
Villayutham vs Thavasi(Died) ... Plaintiff / ... on 25 August, 2021
S.A(MD)Nos.460 of 2004 & 785 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)Nos.460 of 2004
& S.A.(MD)No. 785 of 2009
In S.A.(MD)No.460 of 2004
1.Villayutham
2.M.Muthusamy
3.M.Muthaiah
4.Muniyandi
... Defendants 1 to 4 / Respondents 1 to 4 /
Appellants 1 to 4
-Vs-
1.Thavasi(Died) ... Plaintiff / Appellant / 1st Respondent
2.Muniammal ... 5th Defendant / 5th Respondent / 2nd Respondent
3.Thavasiyandi ... 6th Defendant / 6th Respondent / 3rd Respondent
4.Mariyammal
5.Ravikumar
6.Sukenthira Babu
7.Peter
8.Ulaganathan
9.Kumaravel
10.Sasikala
(R4 to R10 are brought on record as Lrs of the deceased R1
https://www.mhc.tn.gov.in/judis/
S.A(MD)Nos.460 of 2004 & 785 of 2009
vide order dated 27.04.2021 made in C.M.P.(MD)Nos.3573, 3574 &
3579 of 2021 )
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 29.09.2004 passed in A.S.No.
17 of 2002 by the Subordinate Judge, Paramakudi, modifying the decree
and judgment dated 31.01.2002 passed in O.S.No.31 of 2000 on the file of
the District Munsif, Kamuthi.
For Appellants : Mr.Babu Rajendran
for Mr.M.R.Murugesan
For R2 & R3 : Dismissed
For R4 to R10 : Ms.J.Anandhavalli
In S.A.(MD)No.785 of 2009
Thavasi (Died) ... Appellant / Appellant / Plaintiff
2.Mariyammal
3.Ravikumar
4.Sukenthira Babu
5.Peter
6.Ulaganathan
7.Kumaravel
8.Sasikala
(R2 to R8 are brought on record as Lrs of the deceased sole appellant
vide order dated 12.02.2021 made in
C.M.P.(MD)Nos.6591, 6593 & 6594 of 2019 )
... Appellants
-Vs-
https://www.mhc.tn.gov.in/judis/
S.A(MD)Nos.460 of 2004 & 785 of 2009
1.Villayutham
2.Muthuswamy
3.Muthiah
4.Muniyandi
5.Muniammal
6.Thavasiandi ... Respondents / Respondents / Defendants
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 29.09.2004 passed in A.S.No.
17 of 2002 on the file of the Subordinate Court, Paramakudi, modifying the
decree and judgment dated 31.01.2002 passed in O.S.No.31 of 2000 on the
file of the District Munsif cum Judicial Magistrate Court, Kamuthi, insofar
as it relates to item 1 and 6 of the suit properties are concerned.
For Appellants : Ms.J.Anandhavalli
For R1 to R3 & R5 : No appearance
For R4 : Mr.Babu Rajendran
For R6 : Dismissed
COMMON JUDGMENT
These second appeals arise out of O.S.No.31 of 2000 on the file of
the District Munsif Court, Kamuthi. One Thavasi filed the said suit seeking
the relief of declaration and recovery of possession. The suit items are six
in number. The plaintiff sought declaration that the suit items belonged to
him, D5 and D6 jointly.
2. The case of the plaintiff is that Villayutham is in possession of the
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S.A(MD)Nos.460 of 2004 & 785 of 2009
items 1 to 5 and the fourth defendant Muniyandi is in possession of the
6th item. Recovery of possession was sought from the respective
defendants. The defendants 1 to 4 filed written statements controverting the
plaint averments. The defendants 5 and 6 remained exparte. The case of
the first defendant is that he had purchased the suit items 1 to 5, while the
fourth defendant contended that he purchased the 6th item under sale deed
for valuable consideration. Based on the divergent pleadings, the learned
trial munsif framed the necessary issues. The plaintiff examined himself as
P.W.1 and one Kannusamy was examined as P.W.2. Ex.A1 and Ex.A8 were
marked. The first defendant examined himself as D.W.1 and the fourth
defendant examined himself as D.W.2. Three other witnesses were
examined on their side. Ex.B1 to Ex.B15 were marked. After a
consideration of the evidence on record, the trial munsif, by judgment and
decree dated 31.01.2002 granted declaration that the plaintiff is entitled to
the relief of declaration in respect of 1/2 share in items 5 and 6. The suit
was dismissed as regards the suit items 1 to 4. Aggrieved by the same, the
plaintiff filed A.S.No.17 of 2002 before the Sub Court, Paramakudi. The
defendants 1 to 4 also filed cross appeal. The first appellate Court by
judgment and decree dated 29.09.2004 modified the judgment and decree
passed by the trial Court. A.S.No.17 of 2002 was partly allowed and
declaration was granted in respect of the items 2 to 5. The first appellate
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S.A(MD)Nos.460 of 2004 & 785 of 2009
Court declared that the suit items 2 to 5 belonged to the plaintiff, D5 and
D6. The dismissal of the suit as regards item No.1 was confirmed.
Aggrieved by the same, the contesting defendants filed S.A.(MD)No.460 of
2004, while the plaintiff filed S.A.(MD)No.785 of 2009. During the
pendency of these proceedings, the plaintiff Thavasi passed away and his
legal heirs have been brought on record.
3.S.A.(MD)No.460 of 2004 was admitted on the following
substantial questions of law:-
(I) Whether the lower appellate Court is correct to render judgment
that only the male legal heirs of Kilavan alone are entitled to inherit the suit
item Nos.2,3,4 and 5 and the female legal heirs are not entitled to inherit the
said properties under Section 8 of the Hindu Succession Act ?
(II) Whether the lower appellate Court is correct that Kilavan's wife
Kannammal, his daughter Poonkani, Veerammal, who is the widow of his
son Velu have not inherited the said suit item Nos.2 to 5?
(III) Whether the judgment of the lower appellate Court is vitiated by
reason of its failure to point out the mistake if committed by the trial Court?
(IV) Can the lower appellate Court reserve the findings of the trial
Court without giving reasons for its disagreement with the finding of the
trial Court?
(V) When the first appellate Court upheld that Ex.B10-sale deed
executed by Poonkani, daughter of Kilavan, regarding suit item No.6, is it
correct to say that she is not entitled to inherit other properties of her father
Kilavan?
(VI) Whether the suit for declaration of title without impleading
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S.A(MD)Nos.460 of 2004 & 785 of 2009
Vellachi, who is daughter of Velu, is maintainable?
4. S.A.(MD)No.785 of 2009 was admitted on the following
substantial questions of law:-
(I) Whether the lower appellate Court committed an error in rejecting
the case of the appellants in respect of items 1 and 6, when the appellant has
established his title in the said properties?
(2) Whether the judgment and decree of the lower appellate Court is
sustainable in law when the lower appellate Court having found that the sale
deed in respect of items 1, 2, 4 & 5 are illegal, whether the dismissal of the
suit with respect of item 1 is correct?
5. Heard the learned counsel on either side.
6. The genealogy is as under:-
Muthan
Muthiruli Kilavan
https://www.mhc.tn.gov.in/judis/
S.A(MD)Nos.460 of 2004 & 785 of 2009
Kannammal Veerammal Muthu Velu Poonkani
(died as Bachelor) (first wife) (second wife)
X
Veerammal
Thavasi Muthan Vellachi
Thavasiyandi Muniammal
(D6) (D5)
7. The suit item No.5 is comprised in Survey No.103/2, Nerinchipatti
Village. It measures an extent an of 1 acre and 25 cents. The case of the
plaintiff is that the first appellant Villayutham is occupying the entire extent
of land. Even according to the plaintiff, suit item No.5 originally belonged
to Kilavan and it devolved on his son Velu. Velu got married to one
Veerammal. Through the said wedlock, the plaintiff and his brother Muthan
were born. As per Ex.B7, the suit item No.5 was in the joint names of the
plaintiff Thavasi and his brother Muthan. Villayutham (D1) had purchased
only 62.50 cents in the suit item No.5 under Ex.B3 dated 20.04.1992. The
said exhibit covers quite a few items. Muthan is one of the executants of
the sale deed. The description of the property purchased by Villayutham-
D1 under Ex.B3 indicates that the property purchased by him in suit item
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S.A(MD)Nos.460 of 2004 & 785 of 2009
No.5 was lying to the south of Thavasi's land. In other words, even
according to Villayutham, Thavasi is occupying the remaining 1/2 portion
of the suit item No.5 on the northern side.
8. The learned counsel for the plaintiff would still urge that even
though Villayutham purchased only 1/2 of the suit item No.5, he managed
to occupy the entire suit item No.5. This allegation is firmly denied by the
learned counsel appearing for the contesting defendants. Since there is no
dispute regarding the tracing of title, it is declared that the legal heirs of the
plaintiff Thavasi are entitled to 62 ½ cents of land in the suit item No.5
which lies to the north of what was purchased by D1 under Ex.B3.
Villayutham -D1 categorically states that he is not occupying the land that
has been now declared to belong to the plaintiff Thavasi.
9. Suit item No.4 is comprised in Survey No.148/1 in the same
village. It measures an extent of 3.50 acres. D1-Villayutham had purchased
the suit property under Ex.B2 dated 03.01.1992. The executants of the said
sale deeds are Poonkani daughter of Kilavan born through Kannammal and
Vellachi. As per Ex.B6, the suit property covered under Patta No.1030
stood in the name of Vellachi and Poonkani. Now the question is whether
the plaintiff can be non-suited entirely in respect of this item. There is no
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S.A(MD)Nos.460 of 2004 & 785 of 2009
dispute that the suit item originally belonged to Muthan and the parties are
tracing their title only through Kilavan. Kilavan had two wives. The name
of the first wife is not known. Through the first wife, one Velu was born.
Velu got married to Veerammal and the plaintiff Thavasi and his brother
Muthan were born through the wedlock. There is some controversy
regarding the paternity of Vellachi. While it is admitted that Vellachi was
born to Veerammal, the plaintiff would state that Velu was not her father.
There is no dispute that Kannammal was the second wife of Kilavan and
through the said wedlock, Poonkani was born. Ex.B2 had been executed by
Poonkani who obviously had 1/2 share in suit item No.4. From the fact that
Vellachi's name is also found in the revenue records, I can safely conclude
that she was also treated as daughter by Velu also.
10. Looked at from that perspective, Vellachi can be said to have
inherited 1/6th of Velu's 1/2's share. Before this Court, Thavasi alone is a
contestant. Therefore, it is declared that the legal heirs of Thavasi are
entitled to 1/6th share in suit item No.4. It is open to them to file an
independent suit for partition and separate possession of their 1/6th share. In
the partition suit, it is sufficient to implead Villayutham alone as defendant.
11. Suit item No.3 is comprised in Survey No.84/7. It measures an
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S.A(MD)Nos.460 of 2004 & 785 of 2009
extent of 98 cents. As per Ex.B5, it is covered under Patta No.872. Ex.B5-
Kist receipt stands in the name of Muthan. Villayutham had purchased this
property under Ex.B3. Of-course, Muthan was one of the executants of the
documents. It has not been shown that this property was purchased by
Muthan. Obviously, it devolved only from his father Velu. Velu had
another son namely plaintiff. Villayutham could have got only 1/2 share in
suit item No.3 under Ex.B3.
12. Since Poonkani is also one of the executants / vendors, applying
the logic applied in the case of the other items, it can safely be concluded
that Villayutham had purchased 75% share in suit item No.3. Therefore, the
legal heirs of plaintiff Thavasi can be granted declaration only to the extent
of 1/4th share in suit item No.3. Since suit item No.3 is also said to be in the
possession of Villayutham, it is open to them to file a partition suit
impleading Villayutham alone and ask for separate possession of 1/4th share
in suit item No.3.
13. Suit item No.2 is comprised in Survey No.44/7. It measures an
extent of 1 acre and 42 cents. It is covered under Patta No.649. Ex.B4 is
the kist receipt and it reflects the name of Poonkani. D1-Villayutham had
purchased suit item No.2 under Ex.B2. Ex.B2 was executed by Poonkani
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S.A(MD)Nos.460 of 2004 & 785 of 2009
and Vellachi. Applying the same logic applied in the case of item No.3,
D1-Villayutham will have 75% share in the suit property. Therefore, the
legal heirs of plaintiff Thavasi can be granted declaration only to the extent
of 1/4th share in suit item No.2. It is open to them to file a partition suit
impleading Villayutham alone and ask for separate possession of 1/4th share
in suit item No.2.
14. Suit item No.1 is comprised in Survey No.141/1 and measures an
extent of 5 acres and 12 cents. It is covered under Patta No.649-Ex.B4
which is standing in the name of Poonkani. From Poonkani, Villayutham
had purchased under Ex.B2. Though Villayutham originally claimed that
this property was purchased by Kannammmal under Ex.B1, a careful
perusal reveals that the property covered under Ex.B1 does not tally with
suit item No.1. Once Ex.B1 is eschewed out of consideration, it can also be
considered as property that originally belonged to Muthan which devolved
on his descendants. Looked at from that angle, since Vellachi is also one of
the executants of Ex.B2, the plaintiff Thavasi is entitled to 1/3rd share in
suit item No.1.
15. Item No.6 comprised in Survey No.74/4 measuring 90 cents is in
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S.A(MD)Nos.460 of 2004 & 785 of 2009
the name of the children of Velu. The plaintiff's name Thavasi is
specifically mentioned. The fourth defendant Muniyandi had purchased the
said property under Ex.B10 from Poonkani. The plaintiff has not filed any
title document. Applying the logic adopted in the other items, D4-
Muniyandi will have only 50% share in Survey No.74/4. At this stage, the
learned counsel appearing for the contesting defendants would point out
that the jurisdictional Thasildar had already passed Ex.B11-proceedings sub
dividing Survey No.74/4. Survey No.74/4A stands in the name of the
fourth defendant, whereas Survey No.74/4B stands in the name of Velu's
son Muthan and Thavasi. The suit was filed only in the year 2000. The
plaintiff who is retaining Survey No.74/4B is gunning for Survey No.74/4A
also. As already pointed out that this portion has already been purchased
by the fourth defendant Muniyandi from Poonkani. Therefore, the first
appellate Court rightly non-suited the plaintiff as regards item No.6.
16. The substantial questions of law are answered accordingly. Both
the second appeals are partly allowed. No costs.
25.08.2021
Internet : Yes/No
Index : Yes/No
rmi
https://www.mhc.tn.gov.in/judis/
S.A(MD)Nos.460 of 2004 & 785 of 2009
To
1.The Subordinate Judge, Paramakudi.
2. The District Munsif, Kamuthi.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
G.R.SWAMINATHAN.J.,
https://www.mhc.tn.gov.in/judis/
S.A(MD)Nos.460 of 2004 & 785 of 2009
rmi
Judgment made in
S.A.(MD)Nos.460 of 2004
& S.A.(MD)No. 785 of 2009
25.08.2021
https://www.mhc.tn.gov.in/judis/
