Madras High Court

V.Ashok vs V.Padma on 2 July, 2021

                                                                                S.A.No.492 of 2021 &
                                                                               C.M.P.No.9570 of 2021




                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                 Dated : 02.07.2021
                                                       Coram
                                    THE HONOURABLE MR. JUSTICE M.SUNDAR
                                                S.A.No.492 of 2021
                                                        &
                                               C.M.P.No.9570 of 2021

                  V.Ashok                                                  .. Appellant

                                                          Vs.

                  1. V.Padma
                  2. Mr.Anandan
                  3. Mrs.Asha                                              .. Respondents

                        Second Appeal filed under Section 100 of the Code of Civil Procedure,
                  1908 to set aside the judgment and decree dated 09.12.2019 in A.S.No.5 of
                  2019 passed by the V Additional Judge, City Civil Court, Chennai
                  confirming the judgment and decree dated 30.11.2016 in O.S.No.1984 of
                  2012 passed by XVII Assistant Judge, City Civil Court, Chennai.

                            For Appellant          :     Mr.A.D.Janarthanan

                                                   JUDGMENT

Mr.A.D.Janarthanan, learned counsel on record for sole appellant in

the captioned second appeal is before this Virtual Court. Sole appellant

before this Second Appeal Court presented a plaint on 02.09.2012 on the file

of 'XVI Assistant Judge's Court, Chennai' (hereinafter 'trial Court' for the

https://www.mhc.tn.gov.in/judis/ S.A.No.492 of 2021 & C.M.P.No.9570 of 2021

sake of brevity), which was taken on file as O.S.No.1984 of 2012. Prayer in

the suit was for partition and separate possession of what according to

plaintiff is his 1/4th share in the suit properties. Plaintiff is the son of one

Late Veeraswami and he had launched the suit against his mother Padma,

brother Anandan and sister Asha i.e., spouse, son and daughter respectively

of Late Veeraswami.

2. The suit for partition was resisted by pleadings that are primarily

predicated on a testament i.e., a Will dated 20.12.1995.The prayer for

partition in the suit essentially turns on the validity of the Will as the plaintiff

disputes the validity of the Will said to have been executed by Late

Veeraswami as according to the defendants the suit properties were

bequeathed by Late Veeraswami vide this testament.

3. Matter of immense significance is, in the trial Court an issue was

framed with regard to the Will. This is Issue No.3 and the same reads as

follows:

' 3.Whether the deceased Veeraswami has executed a Will

https://www.mhc.tn.gov.in/judis/ S.A.No.492 of 2021 & C.M.P.No.9570 of 2021

dated 20.12.1995 in favour of the 1st defendant and whether the WILL is true and genuine?'

4. The aforementioned testament (Will) became subject matter of

dispute.

5. Be that as it may, the protagonist of the testament (Will) filed

O.P.No.659 of 2013 on the Original Side of this Court i.e., Madras High

Court, seeking probate of this testament. On contest, this OP was converted

into a Testamentary Original Suit, namely T.O.S.No.8 of 2014. This Court is

informed that the same is pending. Under such circumstances, trial Court,

after full contest in and by judgment and decree dated 30.11.2016 dismissed

the suit for partition, but preserved the rights of the plaintiff to launch an

appropriate suit/partition suit subject to probate proceedings which has now

become Testamentary Original proceedings in this Court. This is captured in

a portion of the judgment of the trial Court, which reads as follows:

' On hearing both sides and on perusal of evidence given by both sides, this Court decides that, when the Original Will is not available before this court, when the evidence of attestor namely,

https://www.mhc.tn.gov.in/judis/ S.A.No.492 of 2021 & C.M.P.No.9570 of 2021

V.E.Padmanabhan, S/o.V.G.Ethirajulu/DW2 in the absence of production of Original Will can not be a full fledged evidence and when the probate proceedings is pending before the Honourable High Court, Madras in O.P.No.659 of 2013-T.O.S.No.8/2014 where both parties have participated, at present going into detail about the issue, whether the suit property is the self-acquired property of the Plaintiff's father Veeraswami or it was purchased by joint family income, is not required.

So, after disposal of the probate proceedings before the Honourable Court regarding the WILL dated 20.12.1995, if it is necessary, the plaintiff is entitled to file appropriate suit/partition suit. Hence in view of the above findings, this court has determined to dismiss the suit. Accordingly, Issue No.1 is answered.'

6. Plaintiff carried the matter in appeal by way of a regular first appeal

under Section 96 of 'The Code of Civil Procedure, 1908' ('CPC' for the sake

of brevity) vide A.S.No.5 of 2019 on the file of V Additional City Civil

Judge's Court, Chennai and first appeal Court dismissed the first appeal

(after full contest) confirming the aforementioned judgment and decree of the

trial Court.

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7. In the admission Board i.e., admission hearing of the captioned

second appeal today, learned counsel for plaintiff submits that the probate

proceedings were launched post partition suit. This can hardly alter the

position much less lead to a substantial question of law as the captioned

matter is a second appeal under Section 100 CPC. To be noted, as already

alluded to supra, there is no disputation or disagreement that the

aforementioned Testamentary Original Suit being T.O.S.No.8 of 2014 is now

pending on the Original Side of this Court. Therefore, plaintiff has to

necessarily await the outcome of this T.O.S and in any event, as already

mentioned supra, trial Court and first Appellate Court have concurrently

preserved the rights of the plaintiff to file an appropriate suit or a partition

suit subject to / depending on the outcome of the Testamentary Original Suit

proceedings. This aspect of the matter will obviously stand confirmed on

dismissal of this second appeal.

8. This takes us to the issue whether any substantial question of law

arises in the captioned second appeal. As many as 8 questions have been

proposed as substantial questions of law by the appellant and the same (as

https://www.mhc.tn.gov.in/judis/ S.A.No.492 of 2021 & C.M.P.No.9570 of 2021

culled out from the memorandum of Grounds of Appeal) read as follows:

'Substantial Questions of Law:

a) Whether the Courts below properly construed the oral and documentary evidence adduced by the parties?

b) Whether the Courts below has consider the property in question was constructed by the appellant / plaintiff?

c) Whether the Courts below have properly decided the case of the plaintiffs in granting the relief by share of the property?

d) Whether the Courts below have properly considered the appellant having share in the property?

e) Whether the courts below have consider the genunity of the WILL decided by the Honourable High Court and the Partition of suit property will be decided only for Civil Suit?

f) Whether the courts below have properly considered the suit filed by the appellant/plaintiff is genuine or not, since after filing of the partition suit the probate proceedings has been filed by the 1st defendant with help of other defendants?

g) Whether the Courts below have properly considered the deceased Mr.Veerasamy executed a Will within 3 months after purchase the property as vacant site?

h) Whether the Courts below have properly consider the appellant/plaintiff is also hard earning along with his father for more than 10 years was admitted by DW1.'

https://www.mhc.tn.gov.in/judis/ S.A.No.492 of 2021 & C.M.P.No.9570 of 2021

9. The expression 'substantial question of law' ('SQL'for

brevity)occurring in Section 100 CPC has been elucidatively explained in a

long line of authorities starting from Sir Chunilal Mehta's case [Sir

Chunilal V.Mehta and Sons Ltd., Vs. Century Spinning and

Manufacturing Co. Ltd., reported in AIR 1962 SC 1314] wherein a

Constitution Bench of Hon'ble Supreme Court affirmed the view taken by a

Hon'ble Full Bench of this Court in Rimmalapudi Subba Rao's case

[Rimmalapudi Subba Rao Vs. Noony Veeraju And Others reported in AIR

1951 Madras 969 (FB)]. Suffice to say that this is the obtaining position of

law as this has been reiterated by Hon'ble Supreme Court as recently as on

27.08.2020 in Nazir Ahmed case [Nazir Mohamed Vs. J.Kamala reported in

2020 SCC OnLine SC 676]. This Court deems it appropriate to not to extract

and reproduce relevant portion from these celebrated judgments as it is not

necessary to burden this judgment with those aspect of the matter. Suffice to

say that nothing debatable or no issue of any settled position of law being

disregarded arises in the case on hand. To put it differently, no substantial

question/s law arise/s. From the narrative, discussion and dispositive

reasoning thus far it will be clear that 8 questions suggested as substantial

https://www.mhc.tn.gov.in/judis/ S.A.No.492 of 2021 & C.M.P.No.9570 of 2021

questions of law by the appellant neither qualify as SQL nor arise in the

captioned second appeal.