Madras High Court
Kamatchi (Died) vs Kottaiammal on 14 July, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
SA (MD)No.1053 of 2007
and
MP(MD)Nos.1 of 2011 & CMP(MD)Nos.3036, 3525 of 2017
1.Kamatchi (died) S/o.Kathamuthu
2.Ganesan S/o.Kamatchi
3.Jeganathan S/o.Ganesan
4.Nagarajan S/o.Kamatchi
5.Arumugam S/o.Kamatchi ... Appellants
(Respondents 2, 3, 4 and 6 were
transposed as appellants 2, 3, 4 an d5
vide order dated 30.07.2012)
Vs.
1.Kottaiammal W/o.Karmegam
2.Thangarasu S/o.Kamatchi
3.Ramalakshmi W/o.Arumugam .... Respondents
Prayer : Second Appeal filed under Section 100 of Civil Procedure
Code, against the judgment and decree dated 07.12.2006 passed by
the Subordinate Court, Ramanathapuram in A.S No.30 of 2006
reversing the judgment and decree dated 07.03.2006 passed by the
District Munsif and Judicial Magistrate Court, Thiruvadanai in O.S
No.42 of 2001 as the same is liable to be set aside.
https://www.mhc.tn.gov.in/judis
1/10
For Appellants : Mr.S.Ramu
For Respondent : Mr.PT.S.Narendravasan for R1
Mr.R.Murugesan for R2
No appearance for R3
JUDGEMENT
This second appeal arises out of a partition suit. The first
respondent herein namely, Kottaiammal filed O.S No.42 of 2001 on
the file of the District Munsif Court, Thiruvadanai for partition and
separate possession of 1/7th share in the suit properties. The first
defendant in the suit namely, Kamatchi is the father of the plaintiff
Kottaiammal. The defendants 2, 4, 5 and 6 are her brothers. The
third defendant is the son of 2nd defendant. The seventh defendant
Ramalakshmi is the sister of Kamatchi.
2.The specific case of the plaintiff is that the suit properties are
ancestral in nature and that therefore they are amenable to partition.
The plaintiff's father Kamatchi/defendant No.1 filed written statement
controverting the plaint averments. The other defendants adopted
the statement of the first defendant. The trial court framed the
following issues :
“1.Whether the plaintiff is entitled to 1/7th share in
the suit properties?
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2.Whether the plaintiff is in joint possession and
enjoyment of the suit property?
3.Whether the item No.6 of the suit property is
ancestral property?
4.Whether the item Nos.1 to 5, 7 to 16 are self
acquired properties of the first defendant ?
5.Whether the plaintiff is entitled to get the
preliminary decree for partition and separate possession
of her 1/7th share in the suit properties?
6.What other reliefs to be granted to the plaintiff ?”
Exs.A1 to A7 were marked. The first defendant Kamatchi examined
himself as DW.1 and one Ramu was examined as DW.2. Exs.B1 to
B16 were marked on the side of the defendants. By judgment and
decree dated 07.03.2006, the trial court dismissed the suit. Aggrieved
by the same, the plaintiff filed A.S No.30 of 2006 before the Sub
Judge, Ramanathapuram. The first appellate court vide judgment and
decree dated 07.12.2006 allowed the appeal in part and granted
preliminary decree for partition declaring the plaintiff's 1/7th share in
respect of certain items of the suit schedule. Challenging the same,
the first defendant Kamatchi filed this second appeal. The second
appeal was admitted on the following substantial questions of law :
“1.Whether the lower appellate court is right in not
considering the existence of the Hindu Succession
(Tamil Nadu Amendment) Act 1990 which will prevail
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over the Amendment in the year 2005 while deciding the
entitlement of a member of Hindu Undivided Family?
2.Whether the lower appellate court is right in
deciding that the first respondent is entitled to have
1/7th share in the properties described as item Nos.
5,6,9,13, 15 and 16 in the plaint schedule without
taking note of her non-eligibility due to her marriage as
per Section 29A of the Hindu Succession (Tamil Nadu
Amendment) Act 1990?”.
3.Whether both the courts below are correct in not
considering the vital point that partition among the
defendants through Ex.B14 cannot be affected by the
Hindu Succession (Amendment) Act 2005 and so that
the first respondent is not entitled to the relief sought
for ?”.
3.During the pendency of the second appeal, Kamatchi/the first
defendant passed away and the brothers of the plaintiff got themselves
transposed as appellants. The plaintiff also filed Cross Appeal in
respect of the suit items for which relief was not granted. But then,
the Cross Appeal was not filed in time. The judgment and decree of
the first appellate court was passed on 07.12.2006. The cross appeal
was filed only on 29.09.2011. The papers were returned for rectifying
certain defects. There was a delay of 1961 days in representing the
cross appeal. Till date, the cross appeal has not been numbered also.
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4.Before the learned counsel appearing for the appellant's
commencing his arguments, the learned counsel appearing for the
first respondent/plaintiff raised a preliminary objection as regards the
maintainability of this second appeal. He pointed out that the trial
court even while holding that items 1, 2, 3, 4, 7, 8, 10, 11, 12 and 14
are the self acquired properties of the first defendant, it gave a specific
finding that items 6,5, 9, 13, 15 and 16 are the ancestral properties
and that the plaintiff is entitled to claim her 1/7th share in those items
as per the Hindu Succession (Amendment) Act, 2005.
5.The learned counsel for the plaintiff would point out that it was
only the plaintiff who filed the first appeal and that the defendants
have not filed any cross appeal or cross objection questioning the
aforesaid finding of the trial court that was in favour of the plaintiff.
His pointed contention is that having failed to file cross appeal or cross
objection by the appellants, the present second appeal is not at all
maintainable. According to him, the first appellate court by the
impugned decree has granted preliminary decree only in respect of
those items that were declared by the trial court itself as ancestral.
In other words, the judgment and decree of the first appellate court
was in consonance with the specific finding given by the trial court.
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6.The learned counsel for the appellants would submit that the
trial court had also given a specific finding that the plaintiff is in out of
possession and that since the suit had not been valued under Section
37(2) of the Tamil Nadu Court-Fees And Suits Valuation Act, 1965, the
plaintiff was not entitled to any relief. When the trial court had
dismissed the suit in toto, there was no need or necessity to file any
cross appeal or cross objection. He placed reliance on the decision of
the Madras High Court reported in 2013 (5) CTC 49 (Mariammal &
another vs. Subbuthai & others) and the decision of the Hon'ble
Supreme Court reported in (2020) 9 SCC 1 (Vineeta Sharma v. Rakesh
Sharma) in support of the said contention. He pointed out that the
plaintiff got married prior to the Hindu Succession (Tamil Nadu
Amendment) Act, 1989 and that there was a partition between the
father and sons in the year 1997 as evidenced by Ex.B14 dated
30.04.1997. The suit properties have been divided among the father
and sons and they are in separate and independent possession of the
properties. Pattas have also been obtained in their individual names.
He, therefore, submitted that the judgment and decree of the first
appellate court will have to be reversed by answering the substantial
questions of law in favour of the appellants.
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7.The learned counsel for the respondents submitted that the
first appellate court had adopted a correct approach. He reiterated
his preliminary objection that when the trial court had given a finding
as regards the plaintiff's entitlement in respect of the items that were
declared as ancestral in character and when the defendants failed to
challenge the same by filing cross objection, grant of relief by the first
appellate court does not call for any interference.
8.I carefully considered the rival contentions and went through
the evidence on record. The suit items are 16 in number. The trial
court has given a specific finding that some of the properties, namely,
1, 2, 3, 4, 7, 8, 10, 11, 12 and 14 are the self acquired properties of
the first defendant and some of the items are ancestral properties.
The first appellate court also after appreciating the evidence on record
had given a specific finding. In my view, these finding rest on proper
appreciation of record. I sustain the contention of the courts below as
regards the character of the properties.
9.Now, the question that arises for my consideration is whether
the plaintiff is entitled to share in the properties that have been
declared as ancestral properties. Since the plaintiff got married prior
to the Hindu Succession (Tamil Nadu Amendment) Act, 1989,
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obviously, she cannot claim any benefit thereunder. That is too a
settled proposition. Now, the question is as to whether in view of the
amendment made in the year 2005, the plaintiff can claim any right.
As rightly pointed out by the learned counsel appearing for the
appellants in view of the decision of the Supreme Court reported in
(2020) 9 SCC 1 (Vineeta Sharma v. Rakesh Sharma), the disposition or
alienation which would include partition also must have taken place
prior to 2005. In this case, the defendants have established that
partition had taken place among the coparceners on 13.04.1997.
Ex.B14 clearly evidences the same. The partition suit in question was
filed only as on 12.06.2001. Therefore, the plaintiff cannot have the
benefit of the 2005 Amendment Act also. It is true that the trial court
had given a finding that the plaintiff is entitled to 1/7th share as per
the 2005 Amendment Act and it is true that the defendants have not
specifically questioned the same by filing cross appeal. But if the
same is to be allowed, it will be contrary to what has been laid down
by the Hon'ble Supreme Court in Vineeta Sharma. Article 141 of the
Constitution of India states that the law declared by the Supreme
Court shall be binding on all courts within the territory of India. In
this view of the matter, the judgment and decree passed by the first
appellate court is set aside.
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10.This second appeal is allowed. No costs. Consequently,
connected miscellaneous petitions are closed.
14.07.2021
Index : Yes / No
Internet : Yes/ No
skm
Note :In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the
correct copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. The Subordinate Court, Ramanathapuram.
2. The District Munsif and Judicial Magistrate, Thiruvadanai
Copy to : The Record Keeper, V.R. Section,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN, J.
skm
SA (MD)No.1053 of 2007
14.07.2021
https://www.mhc.tn.gov.in/judis
