Madras High Court
Kasthuribai @ Kasthuri vs Natarajan on 25 January, 2021
A.S.No.391 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.01.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
A.S.No.391 of 2015 and M.P.No.1 of 2015
Kasthuribai @ Kasthuri
rep. by Power Agent/
by her Son S.Banugopan ... Appellant
-vs-
1. Natarajan
2. Shanmugavel
3. Lakshmi
4. Abirgami @ Jayalakshmi ... Respondents
First Appeal filed under Section 96 of CPC. against the judgment and
decree dated 06.02.2015 made in O.S.No.50/2009 on the file of the III
Additional District Judge, Puducherry.
For Appellant : Mr.T.Sathyamoorthy
For Respondents : Mr.V.Raghavachari for 1 and 2
1/15
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A.S.No.391 of 2015
JUDGMENT
(Judgment of the Court was pronounced by T.RAJA, J.)
The First Appeal has been directed against the impugned judgment
and decree dated 06.02.2015 passed in O.S.No.50/2009 by the learned III
Additional District Judge, Puducherry, dismissing the suit for partition
instituted by the 1st plaintiff/appellant herein and one Mrs.Abirgami @
Jayalakshmi/2nd plaintiff.
2. The case of the plaintiffs is that the plaintiffs 1 and 2 are
daughters of one late Rajamanickam and sisters of the defendants 1 and 2
and after the demise of their father Rajamanickam on 23.03.1983 at
Puducherry, who left behind the plaintiffs and the defendants and their
mother as his only legal heirs, filed a suit in O.S.No.50/2009 on the file of
the learned III Additional District Judge, Puducherry in the year 2009
seeking a decree for partition for division of suit schedule properties by
metes and bounds and for allotting 2/5th share to the plaintiffs and for
appointment of Advocate Commissioner for effecting partition in terms of
the preliminary decree and also for deciding the mesne profit payable by the
defendants 1 and 2 for the period from 1984 till the date of decree with a
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A.S.No.391 of 2015
consequential direction, directing the defendants 1 and 2 to pay 2/5 th of the
share to them. The further case of the plaintiffs is that after the demise of
their father, late Rajamanickam, who is the owner of the suit schedule
properties, since the ownership of the suit schedule properties devolved
upon the plaintiffs, that the defendants 1 and 2 being male members of the
family are looking after the said properties, that in spite of repeated
requests made to them insisting upon the need for partition in respect of the
suit schedule properties even after the demise of their mother Chakkubai on
03.02.1997 and that finding no response to the Lawyer's Notice dated
16.09.2008 issued to the defendants 1 and 2, demanding partition of the
schedule mentioned properties, they laid the claim for passing a decree for
partition as mentioned therein.
3. Opposing the maintainability of the suit for partition, the
defendants 1 and 2 filed a joint written statement whereas the 3rd defendant
Lakshmi, who is the sister of the plaintiffs 1 and 2 and the defendants 1 and
2, also filed a detailed written statement clearly supporting the prayer for
partition laid by the plaintiffs 1 and 2.
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4. Learned Counsel for the appellant/1st plaintiff assailing the
reasonings and the ultimate conclusions reached by the learned trial court,
more particularly, the stand taken by the defendants 1 and 2 pleaded that
when Mr.Natarajan and Shanmugavel, namely, defendants 1 and 2 are the
own brothers of the plaintiffs 1 and 2 and the 3rd defendant, the defendants 1
and 2 in the first part of the written statement taking a peculiar stand
pleaded therein that the suit schedule properties were in absolute ownership,
possession and enjoyment of late Rajamanickam Naicker, son of
Shanmugavel Naicker. Hence the suit for partition was not maintainable.
When the defendants 1 and 2 denied vehemently the allegations and
averments made by the plaintiffs 1 and 2 seeking for partition on the ground
that the suit schedule properties were not ancestral properties, but self-
acquired absolute properties of the late Rajamanickam, it is not open to
them to take a diametrically opposite stand that the suit schedule properties
were partitioned on 31.03.1993 by a Registered Partition Deed between the
plaintiffs and the defendants 1 and 2 and the same was also registered on
28.07.1993. Moreover, Vasudevan, husband of the 2nd plaintiff and
Adhimoolan, husband of the 3rd defendant Lakshmi were well aware of the
said partition Deed because they were also parties to the Partition Deed as
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A.S.No.391 of 2015
attestors. When the husband of the 2nd plaintiff and the husband of the 3rd
defendant have disproved the stand and the claim for partition laid by the
plaintiffs 1 and 2 and the 3rd defendant, it is not open to the plaintiffs to
proceed further with the claim for partition. This case of the defendants was
accepted by the trial court wrongly. The reason being that when the
defendants 1 and 2 in the first part of the Written Statement had denied that
the suit schedule properties are not amenable for partition for the reason that
they are not ancestral properties, since the same are absolute property of the
late Rajamanickam Naicker, the further case of the defendants 1 and 2 ought
to have been disbelieved because they are not expected to blow hot and
cold. Moreover, when they are coming to the Court by filing written
statement, they have to come to the Court with clean hands. Taking double
stand before the trial court clearly shows the conduct of the defendants,
hence, the trial court ought to have rejected their case, it is pleaded.
5. Learned Counsel for the appellant further pleaded that
moreover, when the late Rajamanickam Naicker, father of the plaintiffs 1
and 2 and the defendants, died on 23.03.1983, leaving behind the plaintiffs
and the defendants as the legal heirs of the suit scheduled properties along
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with his wife Chakkubai who died on 03.02.1997 at Pondicherry, after the
death of the late Rajamanickam Naicker, in view of the fact that Chakkubai
was alive till 03.02.1997, they were not able to make any claim. However,
after the death of Chakkubai on 03.02.1997 at Pondicherry, within a year, a
suit for partition was filed because the defendants 1 and 2 even after the
death of the mother of the plaintiffs and the defendants refused to part with
even any due share in the ancestral properties. But the learned trial court
has overlooked all these facts, as a result, erroneous findings and
conclusions have been reached by the learned trial court. When there is no
any iota of evidence filed by the defendants 1 and 2 disproving the claim for
partition of the suit schedule properties belonging to the late Rajamanickam,
dismissing the suit for partition by the trial court is unfair and unjustifiable.
Concluding his arguments, learned Counsel for the appellant also pleaded
that in view of the inconsistent stand taken by the defendants 1 and 2, which
was not properly dealt with by the trial court in his judgment, the appeal
deserves to be allowed by setting aside the impugned judgment and decree
of the trial court.
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6. Learned Counsel appearing for the respondents 1 and
2/defendants 1 and 2 pleaded that when the plaintiffs 1 and 2 and the 3 rd
defendant on the one hand and the defendants 1 and 2 on the other hand
have contested the case, it is the peculiar case of the plaintiffs 1 and 2 and
the 3rd defendant that the suit schedule properties are the ancestral properties
of their father late Rajamanickam. After his demise on 23.03.1983 leaving
behind the plaintiffs and the defendants along with his wife as his only legal
heirs, the suit should have been filed within a reasonable time. But in the
present case, when the plaintiffs 1 and 2 and the 3rd defendant claimed that
they are entitled to have a legal share in the suit schedule properties on the
premise that the same are ancestral properties, no explanation whatsoever
has been furnished either in the Written Statement or in the Proof Affidavit
filed before the trial court or even before this Court giving any reason for
filing the suit belatedly in the year 2009 after 26 long years as rightly
pinpointed by the learned trial court. On this score, the learned trial court
has rightly rejected the plaint giving a finding that the suit filed beyond the
period of limitation is hopelessly hit by the plea of limitation raised by the
defendants 1 and 2.
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7. Learned Counsel for the respondents 1 and 2 further pleaded
that when the defendants 1 and 2 who are the brothers of the plaintiffs 1 and
2 and the 3rd defendant rightly pleaded that when partition took place on
31.03.1993 among the plaintiffs 1 and 2 and the defendants 1 to 3,
Mr.Vasudevan, husband of the 2nd plaintiff Abirgami @ Jayalakshmi has
attested the partition deed dated 31.03.1993. Moreover Mr.Adhimoolam,
who is also husband of the 3rd defendant Lakshmi, has also attested the
partition deed dated 31.03.1993 which has been registered on 28.07.1993.
However, when Adhimoolam came to the trial court and stepping into the
Witness Box after admitted that he has appended his signature in the
registered Partition Deed dated 28.07.1993, ironically took a diametric
opposite stand that he is unaware of the contents of the partition deed,
therefore, the trial court disbelieving the case of the plaintiffs for the reason
that the partition deed dated 31.03.1993 registered on 28.07.1993 was
attested by Mr.Vasudevan, who is the husband of the 2nd plaintiff and also
attested further by Mr.Adhimoolam, who is the husband of the 3rd defendant
Lakshmi and accepting the explanation offered by the defendants 1 and 2
has given a finding that the suit properties underwent partition among the
plaintiffs and the defendants on 31.03.1993, subsequently, the same was
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also registered on 28.07.1993 in which both Vasudevan and Adhimoolam
have stood as witnesses to the registered document. Therefore, when the
case of the plaintiffs and the 3rd defendant was disproved by their own oral
and documentary evidences, the findings and the conclusions reached by the
learned trial court that the plaintiffs 1 and 2 and the 3rd defendant have
unreasonably attempted to reopen the partition that took place in the year
1993 cannot be found fault with.
8. We also find merit on the said submissions of the learned Counsel
for the respondents, as the following two issues arise for our consideration
in this appeal:-
(i) Whether the trial Court has correctly considered the plea of limitation
that the suit is barred by limitation?
(ii)Whether the plaintiffs are entitled for partition, alternatively, what is
the relief they are entitled to?
9. Issue No.(i): When the plaintiffs 1 and 2 along with the 3rd
defendant came to the trial court seeking share in the suit schedule
properties, the specific case of the defendants 1 and 2 was that the suit
schedule properties belonging to the father of the plaintiffs and the
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defendants, namely, late Rajamanickam Naicker were already partitioned
among all the parties on 31.03.1993 in which the plaintiffs and the
defendants were given their due shares and the same was also registered on
28.07.1993. When it is admitted by both parties that the suit properties
belonged to late Rajamanickam, the father of the plaintiffs and the
defendants, the said late Rajamanickam died on 23.03.1983 leaving behind
the plaintiffs and the defendants as his legal heirs, it has been the claim of
the defendants 1 and 2, who are the male members of the family that they
were looking after the suit schedule properties. Subsequently, their mother
Jagu also died on 3.2.97. Even during the lifetime of late Rajamanickam,
the first defendant being a Village Administrative Officer, the second
defendant being employed in AFT mill, they have contributed generally for
the purchase of the properties, because late Rajamanickam was not an
earning member. As the first and second defendants were employed and
received income, they purchased the properties in the name of their father.
Subsequently, when the marriage of the plaintiffs and the third defendant
were solemnized, late Rajamanickam incurred debts, that was repaid by the
defendants 1 and 2, inasmuch as when the first plaintiff's marriage took
place in the year 1964, second plaintiff's marriage was conducted in the year
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1958 and the third defendant's marriage was also conducted in the year 1981
by mortgaging their properties, thereafter, when the partition took place on
31.03.1993 in the presence of Mr.Vasudevan, husband of the second
plaintiff and Mr.Adhimoolam, husband of the third defendant-Lakshmi,
both of them being witnesses to the partition deed, agreed for partitioning
the properties among the defendants 1 and 2. Therefore, when late
Rajamanickam, father of the plaintiffs and the defendants died on
23.03.1983 leaving behind the plaintiffs and the defendants as his legal
heirs, as they jointly enjoyed the properties, they should have filed the suit
within 12 years from the date of partition. Therefore, as rightly held by the
trial Court, the suit was clearly barred by limitation. Accordingly, the first
issue is answered against the appellant.
10. Issue No.(ii): Moving to the second issue, the witnesses to the
partition deed are the husband of the second plaintiff and the husband of the
third defendant. Therefore, when the execution of the partition deed was
known to the plaintiffs and the defendants, coming to know about the
partition deed executed in the year 1993, the plaintiffs cannot turn around to
say that they were unaware of the partition that took place on 31.03.1993.
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Accordingly, the second issue is also held against the appellant.
11. The Apex Court, in the case of R.S.Anjayya Gupta v. Thippaiah
Setty and others, (2019) 7 SCC 300, restating the principles laid in
U.Manjunath Rao v. U.Chandrahekar, (2017) 15 SCC 309 for disposal of
the First appeal under Section 96 read with Order 41, Rule 33 of the Civil
Procedure Code that it is not necessary for the first appellate Court, while
affirming the judgment of the trial Court, to restate the effect of evidence or
reiterate reasons given by trial Court, observed thus:
“11....'3.Thus, in the first appeal the parties have
right to be heard both on the questions of facts as
well as on law and the first appellate court is
required to address itself to all the aspects and
decide the case by ascribing reasons.'
12. In this context, we may usefully refer to Order
XLI Rule 31 CPC which reads as follows:
“Order XLI Appeals from Original
Decrees
31. Contents, date and signature of
judgment.- The judgment of the appellate
court shall be in writing and shall state—
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(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is
reversed or varied, the relief to which the
appellant is entitled;
and shall at the time that it is pronounced
be signed and dated by the Judge or by
the Judges concurring therein.”
13. On a perusal of the said Rule, it is quite clear
that the judgment of the appellate court has to state
the reasons for the decision. It is necessary to make
it clear that the approach of the first appellate court
while affirming the judgment of the trial Court and
reversing the same is founded on different
parameters as per the judgments of this Court. In
Girijanandini Devi v. Bijendra Narain Choudhary,
AIR 1967 SC 1124, the Court ruled that while
agreeing with the view of the trial court on the
evidence, it is not necessary to restate the effect of
the evidence or reiterate the reasons given by the
trial court. Expression of general agreement with
reasons given in the trial court judgment which is
under appeal should ordinarily suffice.....”
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12. The above observation of the Apex Court restating the principles
and the mode of disposal of the First appeal, that it is not necessary for the
first appellate Court, while agreeing with the view of the trial Court on the
evidence, to restate the effect of evidence or restate the reasons given by the
trial Court once again, since the expression of general agreement with the
reasons given in the trial Court judgment would ordinarily suffice, we are
unable to find any illegality or infirmity in the judgment of the trial court,
therefore, the impugned judgment stands confirmed.
13. In the result, A.S.No.391/2015 fails and the same is
accordingly dismissed. No costs. Consequently, connected Miscellaneous
Petition is closed.
(T.R.J.,) (G.C.S.J.,)
25.01.2021
tsi
To
The III Additional District Judge, Puducherry.
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A.S.No.391 of 2015
T.RAJA, J.
and
G.CHANDRASEKHARAN,J.
tsi
A.S.No.391/2015
25.01.2021
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