Madras High Court

Velammal vs Kandasamy on 25 January, 2021

                                                                                       S.A.No.529 of 2020


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 25.01.2021

                                                         CORAM

                                   THE HON'BLE MR. JUSTICE KRISHNAN RAMASAMY

                                                   S.A.No.529 of 2020

                  Velammal                                                  ...Appellant
                                                            Vs
                  1.Kandasamy
                  2.Shanmugam
                  3.Shanmugham                                              ... Respondents

                  Prayer: The Second Appeal filed under Section 100 of the code of Civil
                  Procedure, prayed to set aside the judgment and decree dated 24.01.2020 made
                  in A.S.No.42 of 2019 on the file of the I Additional Subordinate Court, Erode
                  confirming the judgment and decree dated 09.08.2017 made in O.S.No.85 of
                  2015 on the file of the District Munsif cum Judicial Magistrate Court,
                  Kodumudi.


                                         For Appellant     : Mr.J.Ramakrishnan

                                                         JUDGMENT

The Second Appeal has been filed challenging the judgment and decree

dated 24.01.2020 made in A.S.No.42 of 2019 on the file of the I Additional

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Subordinate Court, Erode confirming the judgment and decree dated 09.08.2017

made in O.S.No.85 of 2015 on the file of the District Munsif cum Judicial

Magistrate Court, Kodumudi.

2.The appellant/plaintiff has filed the Second Appeal proposing the

following Substantial Questions of Law:

“a) In the light of Section 8 of the Hindu Succession Act, 1956, whether in the law, the Plaintiff being one of the Class I Legal Heir of her deceased husband along with Defendants 1 and 2, is not she entitled to get 1/9th share in the suit schedule properties and as such the Judgment and Decree of the Courts below in non-suiting the Plaintiff's suit is sustainable?

b) Whether in law the item Nos.2 to 7 and 9 to 12 of the suit properties are not available for partition, when the same have been purchased in the names of Defendants 1 and 2 by utilizing ancestral Joint Family nucleus and income derived from the suit item Nos.1 and8?

c) Whether in law the Ex.A2 Partition Deed entered in between the Defendants 1 and 2, is binding on the Plaintiff, when is not a party to that partition?

d) In the absence of any Registered instrument at the instance of the plaintiff for relinquishing her share, whether in law the statutory right to claim Plaintiff's legitimate share can

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be deprived of?

e) When the Plaintiff is not a party to any of the Sale transaction made by the Defendants 1 and 2, whether in law the sale in favour of Defendants3 to 10 in respect of suit properties have any binding effect so far as Plaintiff's 1/9th share is concerned and a such whether the relief of set aside the Sale Deed is necessary?

f) By considering the evidence of PW1 in whole and not by isolation coupled with the fiduciary capacity of the Plaintiff being a window aged about more than 90 years, whether the courts below are right in holding that the Plaintiff's case lacks bonafide?

g) When the plaintiff came to know about the Ex.A2 Partition Deed dated 22.02.2002 only just prior to filing of suit, whether the First Appellate Court right in holding that the suit is barred by time by misconstruing Article 110 of the Limitation Act?

h) Whether the Courts below are justified in presuming that the Plaintiff has No Objection for the Sale of suit properties under Ex.A3 & Ex.A4 without any valid evidence?”

3.The suit was originally filed by the appellant/plaintiff, who is the

Mother of the respondents 1 and 2/defendants 1 and 2 for the partition.

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According to the appellant, her husband passed away on 05.01.1997 and

thereafter though the appellant made a request to make partition over the

property, the respondents 1 and 2 who are the sons of the appellant herein have

not taken any steps. However, she admitted the fact that there was a partition

on 22.02.2002 and subsequently the 2nd respondent sold the portion of the

property to one Kumaresan on 07.11.2003. Since the said Kumaresan was

passed away, his legal heirs, respondents 3 to 9 sold the said portion of the

property to the 10th respondent on 09.02.2009. In these circumstances, the

appellant came forward and filed the suit for partition in the year 2015.

4.The main contention of the learned counsel for the appellant is that

both the Courts below has come to the conclusion that the appellant is entitled

for 1/9th share. However, the Courts below have refused to grant any share and

the same is against the settled proposition of law. Both the Courts below have

concurrently dismissed the suit without considering the oral and documentary

evidence in a proper perspective. Therefore, the appellant has filed the present

Second Appeal raising the above mentioned Substantial Questions of Law.

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5.Heard the learned counsel for the appellant and perused the materials

available on records.

6.At this juncture, it would be appropriate to extract the relevant portion

of the judgment passed by the Trial Court. Paragraph Nos.12 to 14 is

reproduced here under:

“12.......

thjpapd; fzth; Rg;guha ft[z;lh; ,we;j gpwF thjp mtUila thhpR vd;fpw Kiwapy; mtUf;F ghj;jpag;gl;l brhj;jpy; mtUf;F rl;lg;go g';F cz;L. Mdhy; thjpapd; kfd;fs; ,UtUk; th/rh/M/2d; K:yk; ghfk; bra;Jbfhz;L jdpj;jdpahf mDgtpj;J te;J thjpapd; kfdhd 2k; gpujpthjp 2003k; Mz;nl Fkhurhkpft[z;lUf;F th/rh/M/3d; K:yk; fpiuak; bra;J bfhLj;Js;shh;/ Fkhurhkpft[z;lh; 2003k; Mz;L Kjy; RthjPd mDgtj;jpy; ,Ue;J te;Js;shh;/ mjid Ml;nrgid bra;ahj thjp 2015k; Mz;L jhd; ,t;tHf;if jhf;fy; bra;Js;shh;. nkYk; th/rh/1 d;

rhl;rpaj;ij ghprPyiz bra;J ghh;f;Fk; nghJ 2Mk;gpujpthjp jhd; thjp K:yk; ,t;tHf;if jhf;fy; bra;Js;shh; vd;gij

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mwpaKofpwJ/ thjp J}a fuj;Jld; ePjp kd;wj;ij mQqftpyi ; y vd;gij thjpapd; rhl;rpaj;jpd; K:yk;

mwpaKofpwJ/

13/ thjpapd; fztUf;F jhth brhj;J th/rh/M1 d; K:yk; ghj;jpag;gl;ljhFk;/ thjpapd; fzth; ,we;jjhy; jhthbrhj;Jf;fspy; thjpf;F ,e;JthhpRhpik rl;lk; gphpt[ 8d; gpo chpik cz;L/ Mjyhy; jhth brhj;jpy; thjpf;F ghf chpik cs;sJ vd jPh;khdpj;J TLjy; vGtpdhtpw;F jPh;t[ fhzg;gLfpwJ/

14/thjp J}a fuj;Jld; ePjpkd;wj;ij cQqftpyi ; y/ 2002 k; Mz;L thjpapd; kfd;fs; bra;J bfhz;l th/rh/M 2 ghfg;gphptpidia bghWj;Jk; thjpapd; kfdhd 2k; gpujpthjp Fkhurhkp ft[z;lUf;F Vgjp bfhlj;j th/rh/M/3 fpiuaj;ij bghWj;Jk; vt;tpj Ml;nrgiz bra;atpy;iy/ thjpapd; kfd;fshd 1.2 gpujpthjpfs; bra;J bfhz;l ghfj;ij bghWj;Jk; Ml;nrgiz ,y;iy vd thjp xg;g[f;bfhz;Ls;shh;/ thjp cs;Sgpnyna trpj;J tUk; epiyapy; 2k; gpujpthjp Fkhurhkp ft[z;lUf;F bra;j fpiuak; bjhpahJ vd Tw ,ayhJ/ 2k; gpujpthjpjhd; 10k; gpujpthjpf;F bjhe;jut[ bfhLf;f

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ntz;Lk; vd;w bfl;l vz;zj;jpy; thjpaplk; <tz';fis bfhLj;J tHf;fwp..h; K:ykhf ,e;j tHf;if jhf;fy; bra;Js;shh; vd;gij th/rh/1 d; rhl;rpaj;jpd; K:yk; mwpaKofpwJ/ thjpf;F jhth brhj;jpy; ghf chpik ,Ue;j nghJk; thjp J}af;fuj;Jld; ePjp kd;wj;ij mQqftpyi ; y/ khz;g[kpF cah;ePjpkd;wk; CDJ 2015 MHC 8134, R.Kumar Versus The

Commissioner, Kanyakumari district & Others, vd;fpw tHf;fpy; gpwgpgpj;Js;s jPh;g;gpd; ghuh?y;

8/Perusal of the above decision of the Hon'ble Apex Court makes it clear that a person coming to the court by suppressing material facts must be dealt with severaly apart from showing him the door immediately. A person approaching the Court with unclean hands and taking recourse the legal proceedings successively for the very same cause of action with the very same relief, cannot be shown any indulgence as such an action is an abuse of the process of the Court and LA. It is not necessary that such person by way of such suppression, should have obatined some favourable order from the Court. It is enough for the court to refuse further hearing, if it is found that the person has suppressed the material facts, even during the course of hearing. The conduct of the person that matters not the result out of such conduct. vd Twpa[s;sJ thjp J}a fuj;Jld; ePjpkd;wj;ij mQqftpyi ; y/ ePjpkd;w eltof;iffis jtwhf gad;gLj;jp

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tHf;F jhf;fy; bra;Js;shh;/ 2k; gpujpthjpjhd; thjp ,e;j tHf;if jhf;fy; bra;a fhuzkhf ,Ug;gjhYk; thjpf;nfhhpa[s;s 1-9 g';F ghfk; thjpf;F mspf;fj;jf;fjy;y vd jPh;khdpj;J vGtpdh 1f;F jPht; [ fhzggLfpwJ/”

7.A perusal of the above would show that the Trial Court has come to the

conclusion that the appellant is entitled for 1/9th share. However, it has not

inclined to allot any share since the appellant herein has clearly deposed that

she is well aware of the partition dated 22.02.2002 and subsequent to the

partition respondents 1 and 2, sons of the appellants have been enjoying the

property. Thereafter, the 2nd respondent sold the portion of the property to one

Kumarasamy on 07.11.2003. The respondents 3 to 9, who is the legal heirs of

the said Kumarasamy, sold the said portion of the property to the 10 th

respondent on 09.02.2009. Therefore, the Trial Court after considering the oral

and documentary evidence held that the appellant/plaintiff is well aware of the

partition. The appellant has full knowledge about the enjoyment of the property

by the respondents 1 and 2 based on the partition and has filed the suit for

partition after 12 years and therefore, the suit is not maintainable as the partition

was made and enjoyed by the respondents 1 and 2/defendants 1 and 2 since

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1991.

8.Against the judgment of the Trial Court, the appellant preferred an

appeal in A.S.No.42 of 2019. The Appellate Court also has taken the same view

of the Trial Court and it will be appropriate to extract the relevant portion of the

judgment dated 24.02.2020 made in in A.S.No.42 of 2019. Paragraph Nos. 12.9

and 12.10 is reproduced hereunder:

“12/9 thjp. jhthr; brhj;jpd; Tl;Lr; RthjPdj;jpy; ,y;yhky; ,Ue;jpUf;Fk; epiyapy;. thjp ,t;tHf;if. fhytiuaiwr; rl;lk;. 1963. gpupt[?110 d;go. jhthr; brhj;jpd; RthjPdj;jpypUe;J btspnaw;wg;gl;l 12 tUl';fSf;Fs;shf jhf;fy; bra;jpUf;f ntz;Lk;/ jhthr; brhj;Jf;fisg; bghWj;J 1. 2 gpujpthjpfs; ghfg; gpuptpidg; gupfhuj;ij nfhUtjw;fhd tHf;FK:yk; vGe;jpUg;gjhYk;. Thjp nkw;go ghfg; gpuptpid gj;jpuk; Vw;gl;l njjpapnyna mijg; gw;wp bjupe;jpUe;jjhYk;. Thjp fle;j 22/02/2014 njjpf;Fs; ghfg; gpuptpid gupfhuk; nfhup tHf;if jhf;fy; bra;jpUf;f ntz;Lk;/ Mdhy;. thjp. fle;j 29/04/2015 njjpapy;jhd; mry; tHf;if jhf;fy; bra;jpUf;fpwhu; vd;gJ tHf;F nfhg;g[fis guprPypj;jjd; K:yk; bjupa tUfpwJ/ 12/10 ,e;epiyapy;. thjp jug;gpy;. fle;j 07/11/2003 njjpapy;

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Fkhurhkp ft[z;lu; bgaupy; fpuag; gj;jpuk; vGjpa njjpapy;jhd; mry; tHf;if jhf;fy; bra;tjw;fhd tHf;FK:yk; vGe;Js;sJ vd;W bra;ag;gl;l thjk; Vw;gi [ lajh> vd;W ghu;f;Fk;nghJ.

fhytiuaiwr; rl;lk;. 1963. gpupt[?110d; mog;gilapy;. 1.2 gpujpthjpfs; ghfg; gpuptpid bra;J bfhz;l fle;j 22/02/2002 njjpapnyna thjp brhj;jpd; Tl;Lr; RthjPdj;jpypUe;J tpyf;fg;gl;oUf;fpwhu; vd;gjhYk; me;j ghfg; gpuptpidg; gj;jpuj;ijg; gw;wp thjpf;F me;j njjpapnyna bjupa te;Js;sJ vd;gJ thjpahnyna xg;g[f; bfhs;sg;gl;oUg;gjhYk;. th/rh/M/2 ghfg; gpuptpid gj;jpu njjpapy;jhd; mry; tHf;if jhf;fy; bra;tjw;;fhd tHf;FK:yk; Vw;gl;Ls;snj jtpu. 2k; gpujpthjp vGjpf; bfhLj;j th/rh/M/3 fpuag; gj;jpu njjpapy; tHf;FK:yk; Vw;glhJ vd;nw ,e;ePjpkd;wk fUJtjhy;. Thjp jug;gpd; nkw;go thjk; Vw;gi [ lajhf ,y;iy vd;W Kot[ bra;J. thjpapd;

tHf;fhdJ fhytiuaiwr; rl;lj;jhYk; ghjpf;fg;gl;oUg;gjhf jPu;khdpf;fg;gLfpwJ/”

9.Upon perusal of the judgments passed by both the Courts below and the

documentary evidence, this Court is of the view that the judgments of both the

Courts below is not suffered with perversity and also not vitiated due to failure

of the oral and documentary evidence in an proper perspective. Therefore, the

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well reasoned judgments need not be interfered by this Court.

10.In the result, this Court does not find any Substantial Questions of

Law that arises for consideration as raised by the learned counsel for the

appellant in the memorandum of appeal and the Second Appeal deserves to be

dismissed.

11.According, the Second Appeal is dismissed. No costs.