Madras High Court
Monisa @ Otchammal vs Mayakkal ... 1St on 26 August, 2021
S.A(MD)Nos.376 & 377 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)Nos.376 & 377 of 2012
In S.A.(MD)No.376 of 2012
Monisa @ Otchammal
through her mother, next
frind and guardian
Kalaiselvi and Guardian
and granfather Rasuthevar
Katta Karuppanpatti
Usilampatti Taluk
Madurai District.
(vide order dated 26.08.2021, the appellant was suo motu
declared as major and discharged from the guardianship of
her mother Kalaiselvi and grandfather Rasuthevar)
... Plaintiff / 1st Respondent / Appellant
-Vs-
1.Mayakkal ... 1st Defendant / Appellant / Respondent
2.Ponnusamy ... 2nd Defendant / 2nd Respondent /Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 30.06.2011 made in A.S.No.
126 of 2006 on the file of the Sub Court (Camp at Usilampatti) reversing
the judgment and decree dated 19.01.2006 made in O.S.No.126 of 2002 on
the file of the District Munsif cum Judicial Magistrate No.1, Usilampatti.
https://www.mhc.tn.gov.in/judis/
S.A(MD)Nos.376 & 377 of 2012
For Appellant : Mr.P.T.S.Narendravasan
For Respondents : Mr.J.Barathan
for Mr.J.R.Jeyapalam
In S.A.(MD)No.377 of 2012
Monisa @ Otchammal
through her mother, next
frind and guardian
Kalaiselvi and Guardian
and granfather Rasuthevar
Katta Karuppanpatti
Usilampatti Taluk
Madurai District.
(vide order dated 26.08.2021, the appellant was suo motu
declared as major and discharged from the guardianship of
her mother Kalaiselvi and grandfather Rasuthevar)
... Plaintiff / Cross Appellant /
1st Respondent / Appellant
-Vs-
Mayakkal ... 1st Defendant / Respondent /
Appellant / Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 30.06.2011 made in A.S.No.
126 of 2006 on the file of the Sub Court (Camp at Usilampatti) reversing
the judgment and decree dated 19.01.2006 made in O.S.No.126 of 2002 on
the file of the District Munsif cum Judicial Magistrate No.1, Usilampatti.
For Appellant : Mr.P.T.S.Narendravasan
For Respondents : Mr.J.Barathan
for Mr.J.R.Jeyapalam
https://www.mhc.tn.gov.in/judis/
S.A(MD)Nos.376 & 377 of 2012
COMMON JUDGMENT
The plaintiff in O.S.No.126 of 2002 on the file of the District Munsif
cum Judicial Magistrate No.1, Usilampatti, is the appellant in both these
appeals.
2. The appellant was then a minor. She was represented by two
guardians. The prayer in the suit was for passing preliminary decree
declaring 1/2 share in “A” schedule and “B” schedule properties in favour
of the plaintiff and for recovery of possession of “C” schedule properties
from the second defendant Ponnusamy. The first defendant namely
Mayakkal is the grandmother of the plaintiff. The second defendant
Ponnusamy is her paternal uncle.
3. The case of the plaintiff is that the suit properties belonged to her
grandfather Karuppathevar and grandmother Mayakkal. Karuppathevar
had two sons namely Periyamayan and Ponnusamy. Periyamayan got
married to Kalaiselvi. He passed away on 14.04.2000 leaving behind his
wife Kalaiselvi and the plaintiff Monisa as his surviving legal heirs.
Karuppathevar executed Ex.A1-settlement deed dated 30.10.2000
appointing Ponnusamy and the maternal grandfather Rasuthevar as
guardian for the properties settled in favour of the plaintiff. According to
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S.A(MD)Nos.376 & 377 of 2012
the plaintiff, 1/2 share was settled in her favour in respect of all the three
schedules. The plaintiff alleged that the guardian/D2 was acting against her
interests. Therefore, the plaintiff had to file the aforesaid suit seeking the
relief of partition in respect of “A” and “B” schedule properties and
recovery of possession in respect of “C” schedule properties. The
defendants filed written statement substantially controverting the plaint
averments.
4. Based on the rival pleadings, the trial Court framed the necessary
issues. The plaintiff's mother Kalaiselvi examined herself as P.W.1 and one
Ponnangan was examined as P.W.2. Ex.A1 to Ex.A5 were marked. The
second defendant examined himself as D.W.1. The first defendant was
examined as D.W.3. One Sivanandi Thevar was examined as D.W.2. Ex.B1
to Ex.B3 were marked. After a consideration of the evidence on record, the
trial Court, by judgment and decree dated 19.01.2006, granted 4/9th share in
favour of the plaintiff in the “A” schedule property and dismissed the suit
in respect of “B” schedule and “C” schedule property. Aggrieved by the
same, the first defendant Maykkal filed A.S.No.126 of 2002 before the Sub
Court, Usilampatti. The plaintiff filed cross appeal. They were heard by the
first appellate Court and by judgment and decree dated 30.06.2011, the
appeal filed by the first defendant was allowed, while the cross appeal filed
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S.A(MD)Nos.376 & 377 of 2012
by the plaintiff was dismissed. Challenging the same, these second appeals
have been filed.
5. S.A.(MD)No.376 of 2012 was admitted on the following
substantial questions of law:-
(a) Whether the lower appellate Court is right in law in shifting the
burden on the plaintiff, particularly, when the first respondent raised the
plea that “A” schedule property is exclusive property and not ancestral
property?
(b) Whether the finding by the lower appellate Court that “A”
schedule property is not the ancestral property and the plaintiff failed to
prove it is correct in law when the defendants failed to mark any documents
to show items 2 to 4 in “A” schedule belong to the first defendant and first
defendant herself admitted in her evidence that no documents produced to
show that first item in “A” schedule was purchased by her?
6. S.A.(MD)No.377 of 2012 was admitted on the following
substantial questions of law:-
(a) Whether the Courts below are right in law in dismissing the suit in
respect of “C” schedule property inspite of the specific finding that Karuppa
Thevar who executed the settlement deed under Ex.A1 has got right to
execute the same in favour of the plaintiff?
(b) Whether the Court below are right in law dismissing the suit in
respect of “B” schedule, particularly when the said property was purchased by
P1 under Ex.A2 out of income derived out of “A” schedule property?
7. Heard the learned counsel on either side.
https://www.mhc.tn.gov.in/judis/
S.A(MD)Nos.376 & 377 of 2012
8. The plaintiff had specifically pleaded that the suit properties
belonged to her grandfather Karuppathevar and grand mother Mayakkal
(D1) and that Karuppathevar had settled 1/2 share in favour of the plaintiff
vide Ex.A1. The trial Court granted 4/9th share in favour of the plaintiff.
In the written statement, the plaint averments as regards “A” schedule have
not been controverted. Applying the rule of non-traverse, I must conclude
that “A” schedule jointly belonged to Karuppathevar and Mayakkal. Ex.A1
does not pertain to “A” schedule. Therefore, Karuppathevar's 1/2 share in
“A” schedule would devolve in three equal shares- 1/3rd on his wife
Mayakkal (D1), 1/3rd on his second son Ponnusamy (D2) and the
remaining 1/3rd in favour of the legal heirs of Periyamayan. The first
appellate Court failed to note that the averment of the plaintiff as regards
the character of “A” schedule was not contested by the defendants and
therefore, in view of Order 8 Rule 5 of C.P.C., relief should have been
granted on that basis. Without doing so, the first appellate Court totally
misdirected itself and by an unacceptable reasoning, chose to non-suit the
plaintiff in toto. It is true that the plaintiff had not arrayed her mother
Kalaiselvi as a party. It was actually Kalaiselvi who entered into the
witness box as P.W.1 on behalf of the plaintiff. Hence, there cannot be any
objection in granting 1/6th share in respect of “A” schedule property in
favour of the plaintiff. It is always open to Kalaiselvi to raise her claim
https://www.mhc.tn.gov.in/judis/
S.A(MD)Nos.376 & 377 of 2012
against the plaintiff, if so advised. I make it clear that grant of 1/6th share in
favour of the plaintiff in “A” schedule property would include her mother's
share also.
9. Coming to “B” schedule property, I note that it stands in the name
of the second defendant. Of-course, the learned counsel for the appellant
would contend that Ponnusamy who was appointed as guardian of the
plaintiff purchased “B” schedule property out of the income generated from
“C” schedule properties. This is only an averment and there is no
convincing evidence to substantiate the same. The Courts below have
concurrently found against the plaintiff in this regard. Exercising
jurisdiction under Section 100 of C.P.C., I am not persuaded to hold that
this finding of the Court below is perverse. Therefore, dismissal of the suit
in respect of “B” schedule is confirmed.
10. As regards “C” schedule property, Karuppathevar had settled 1/2
share in “C” schedule property in favour of the plaintiff. The second
defendant was actually nominated as one of the guardians in respect of the
suit properties. The allegation of the plaintiff is that guardian had acted
adverse to the interest of the minor. The Courts below have held that the
suit for recovery of possession will not lie against the guardian. I am not
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S.A(MD)Nos.376 & 377 of 2012
able to appreciate the approach of the Courts below. When the interest of
the minor is involved, the Courts must adopt a proactive approach. Be that
as it may, the plaintiff had attained majority.
11. Obviously, the second defendant Ponnusamy was in the know of
things. Though the learned counsel appearing for the respondents raised
contentions regarding validity of Ex.A1, I must note that Ex.A1 has not at
all been challenged. Obviously, the respondents herein cannot feign
ignorance about the execution of Ex.A1 executed by Karuppathevar.
Karuppu Thevar's son Periyamayan passed away leaving behind a young
widow and minor child. Therefore, Karuppathevar wanted to make an
arrangement to secure the interest of the grand child. With that object in
view, he executed Ex.A1. The noble intention of the settlor ought to be
honored by this Court. It is true that the plaintiff could not have sought the
relief of recovery of possession from the second defendant. Admittedly, the
plaintiff had only 1/2 share in the “C” schedule properties. Therefore, the
plaintiff could have only sought the relief of partition in respect of “C”
schedule. Merely because an erroneous relief was sought, that need not
result in non-suiting the plaintiff in toto. While it is not open to the Court
to grant a larger relief, if otherwise the case is made out, a lesser relief can
be granted. The learned counsel for the appellant would invoke Order 7
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S.A(MD)Nos.376 & 377 of 2012
Rule 7 of C.P.C. The learned counsel appearing for the appellant would
draw my attention to the decision of the Hon'ble Supreme Court reported in
(2002) 1 SCC 90 (Rajendra Tiwary Vs. Basudeo Prasad.)
12. Partition is obviously a lesser relief. Therefore, even while
declining to grant the relief of recovery of possession, the plaintiff's 1/2
share in “C” schedule property is declared. The substantial questions of law
are accordingly answered. The plaintiff is entitled to 1/6 th share in “A”
schedule property. The plaintiff is denied relief in respect of “B” schedule
property. The plaintiff is granted preliminary decree declaring her 1/2
share in “C” schedule property. The plaintiff can file independent
proceedings under Order 20 Rule 12 of C.P.C., as well as final decree
petition against the second defendant in respect of “C” schedule property.
Both the second appeals are partly allowed. No costs.
26.08.2021
Internet : Yes/No
Index : Yes/No
rmi
https://www.mhc.tn.gov.in/judis/
S.A(MD)Nos.376 & 377 of 2012
G.R.SWAMINATHAN.J.,
rmi
To
1.The Sub Court (Camp at Usilampatti).
2. The District Munsif cum Judicial Magistrate No.1, Usilampatti.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)Nos.376 & 377 of 2012
26.08.2021
(2/2)
https://www.mhc.tn.gov.in/judis/
