Madras High Court
Chinnandi Ambalam vs Vellaiyanambalam on 18 February, 2021
S.A.(MD)No.221 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.02.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD)No.221 of 2015
1.Chinnandi Ambalam
2.Thangapandian (Died)
3.Andichamy
4.Sivanayagam
5.Pushpam
6.Seetha
7.Chinnammal
8.Danajayapandi
9.Minor Gomathi
10.Minor Ponnumani
11.Sembayee Appellants
(9th and 10th appellants represented by their mother and guardian/the 6th petitioner)
(Appellants 7 to 11 are brought on record as legal heirs of deceased second appellant, vide
Court order dated 02.07.2019, made in CMP(MD) Nos.7379 to 7381 of 2018 in SA(MD) No.
221 of 2015 by SSSRJ)
Vs.
1.Vellaiyanambalam
2.Pandiayarajan Respondents
PRAYER:- Second Appeal filed under Section 100 of Code of Civil
Procedure, against the Judgment and Decree dated 11.07.2014 in A.S.No.
6 of 2013 on the file of Additional Sub Court, Dindigul, confirming the
Judgment and decree dated 08.11.2012, in O.S.No.153 of 2009, on the
file of Principal District Munsif Court, Dindigul.
1/10
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S.A.(MD)No.221 of 2015
For Appellants : Mr.H.Lakshmi Shankar
For Respondents : Mr.R.Ramadurai
JUDGMENT
The defendants in O.S.No.153 of 2009, on the file of the
Principal District Munsif Court, Dindigul are the appellants. Challenge is
to the decree for partition and separate possession of 2/8th share of the
plaintiffs granted in the said suit and affirmed by the first Appellate Court
in A.S.No.6 of 2013.
2.The plaintiffs sued for partition contending that the first
defendant married their mother, namely, Chinnammal and begot the
plaintiffs 1 & 2. Thereafter, the first defendant married Sembayee, the
mother of the defendants 2 to 6. Both Sembayee and Chinnammal were
alive, when the suit came to be filed. The plaintiffs however sought for
2/8th share in the suit properties conceding that the defendants 2 to 6
would also be coparceners along with the plaintiffs.
3.The suit was resisted by the defendants contending that the
first defendant never married Chinnammal and the plaintiffs are not his
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S.A.(MD)No.221 of 2015
children through Chinnammal. The first defendant would claim that his
only wife is sembayee and he begot the defendants 2 to 6 through her.
The claim of marriage between the first defendant and chinnammal was
flatly denied by the first defendant. In the backdrop of the above
pleadings, the learned trial judge framed the following issues.
● thjpfSf;F gpuhjpy; NfhupAs;sgb ghfk;
fpilf;fj;jf;fjh?
● gpujpthjpfsplkpUe;J nrhj;ij eakplu; ghu;j;J gpupj;J
thjpfSf;F nfhLf;f Ntz;baJ mtrpakh?
● 21.01.2008k; Njjpa nrl;by;nkz;l; nry;yj;jf;fjh?
mjd; Ngupy; gpuhJgb tpsk;Gif gupfhuk; thjpfSf;F
fpilf;fj;jf;fjh?
● gpuhJ (Mis-joinder of unnecessary parties) Njitaw;w
jug;gpdiu Nru;f;fhj Njh\j;jpw;F cs;shfpwjh?
● ,ju gupfhuk; vd;d?
Findings are rendered on the factum of the alleged marriage between the
first defendant and Chinnammal. The learned trial Judge relied only upon
the description of the plaintiffs as children of the first defendant in Ex.A2
Sale Deed and concluded that they would be entitled to a share in the suit
properties, as co-parceners. On the said conclusion, the learned trial
Judge granted a decree as prayed for.
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S.A.(MD)No.221 of 2015
4. Aggrieved, the defendants preferred an appeal in A.S.No.
6 of 2013, on the file of the Additional Subordinate Court, Dindigul. The
learned Additional Subordinate Judge, upon hearing the parties, framed
the following points for determination, which reads as follows:-
“,k;Nky;KiwaPlb
; y; jPu;tpw;Fupa gpur;rpid
vd;dntdpy; Nky;KiwaPL mDkjpf;fg;glj;jf;fjh?
vd;gNjahFk;”
Along with the Appeal, I.A.No.36 of 2014 was filed seeking to produce
certain document, namely, Sale Deed dated 17.06.1997. Overlooking the
fact that the said Sale Deed was already marked as Ex.A2, the first
Appellate Court allowed the application and the said document was once
again marked as Ex.B.11. The lower Appellate Court took note of the fact
that the first defendant, in the affidavit filed in support of I.A.No.36 of
2014, had claimed that Chinnammal was his concubine, dismissed the
appeal, agreeing with the findings of the trial Court. Hence, this Second
Appeal by the defendants.
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S.A.(MD)No.221 of 2015
5. The following questions of law were framed at the time of
admission.
1. Whether the Courts below are justified in decreeing
the suit for partition without framing an issue and
without considering and rendering a finding about the
marriage between the first defendant and plaintiffs'
mother as the first wife, when the status has been
specifically denied by the defendants?
2. Whether the Courts are correct and justified in
decreeing the suit even after the totally unsupportive
evidence of PW 1 and vague and unbelievable
evidence on PW2?
3. Is the conclusion of the Courts merely on the basis of
some recitals Ex.A2 alone and without considering
Ex.B.9 and the clear and undisputed oral evidence of
DW1, sustainable in law?
4. Whether the first Appellate Court is justified in
relying upon the cause title particulars in Ex.B.10, to
establish a relationship, when it is a self serving
document of the plaintiffs' mother?
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S.A.(MD)No.221 of 2015
6.The second appellant died pending suit and his legal heirs
have been brought on record as appellants 7 to 11. The judgment of both
the Courts below in the case on hand are the products of total non
application of mind on the part of the counsel as well as the Judicial
Officers who dealt with the case. As already pointed out, the claim of the
plaintiffs was specifically denied by the defendants. Unfortunately, not
even an issue regarding the marriage and the status of Chinnammal as
wife of Chinnandi Ambalam was framed by the trial Court and neither
the counsel of the plaintiffs nor the defendants sought for recasting of the
issues. Evidence was let in a reckless manner. The trial Court also
rendered its findings as to the claim of the marriage, based on Ex.A.2 and
concluded that the plaintiffs are entitled to a share. If the claim of the
plaintiffs that they are children of Chinnammal, who is the first wife of
Chinnandi Ambalam is accepted, then the defendants would become
children of Chinnandi Ambalam through his second marriage, which
would disentitle them from claiming the share in the suit properties,
during the life time of Chinnandi Ambalam. The status of the defendants
2 to 6 shall be legitimate children, since the marriage is admitted in view
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S.A.(MD)No.221 of 2015
of Section 16 of Hindu Marriage Act. The law as such it stands today is
that the children presumed to be legitimate under Section 16 of Hindu
Marriage Act would not be entitled to a share as coparceners. All these
vital issues that arise have been totally overlooked by the trial Court and
a decree has been passed. The lower Appellate Court also did not advert
to any of these required points that arose for determination. There is total
non-application of mind on the part of the trial Court is decreeing the suit
and its affirmation by the appellate Court.
7.However, Mr.H.Lakshmi Shankar, the learned counsel
appearing for the appellants would submit that since evidence is
available, I can go into and render findings. I afraid that I can not do that
sitting in Second Appeal. Of course, it is open to the second Appellate
Court to look into the evidence and decide the question, if the same had
not been decided by the Courts below. But, at the same time, either of the
parties will be loosing their right of Appeal, if I am to decide all these
questions in this Second Appeal. I therefore do not think that such
exercise could be conducted in this case.
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S.A.(MD)No.221 of 2015
8.Without going into the questions of law framed,
considering the manner in which the suit is filed and disposed of by the
Courts below, I am constrained to observe that these judgment and decree
of the Courts below must be set aside and the matter should be remitted
to the trial Court, directing the trial Court to frame necessary issues and
re-hear the parties and dispose of the suit.
9.In the result, the Second Appeal is allowed on the sole
ground that both the Courts have not adverted to the pleadings of the
parties, framed proper issues and decided the issues that arises in the suit.
Therefore, the suit is remitted to the trial Court with a direction to the
trial Court to frame necessary issues and dispose of the suit. It is made
clear that the parties shall not entitle to let in fresh evidence. No costs.
10. Before parting with the case, I must observe that in most
of the Appeals, points for determination are framed by the first Appellate
Courts, read as follows:-
“Whether the Appeal has to be allowed or not?” Or
“Whether the Judgment and Decree of the trial
Court is right or not?” Or
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S.A.(MD)No.221 of 2015
“Whether the Judgment and Decree of the trial
Court should be set aside or not?”
These points for determination will not meet the requirements of Order
41 Rule 31 of Code of Civil Procedure. The Appellate Court being the
final Court of fact is expected to apply its mind to the facts of the case
and frame points for determination on the issues that arise for
consideration in the Appeal. Framing of general points for determination
will only result in miscarriage of justice as it had happened in the present
case.
18.02.2021
Index : Yes/No
Internet: Yes/No
vrn
To
1.The Additional Sub Court, Dindigul.
2.The Principal District Munsif Court, Dindigul.
3.The Section Officer,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.221 of 2015
R.SUBRAMANIAN, J.
vrn
Judgment made in
S.A.(MD)No.221 of 2015
Dated 18.02.2021
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