Aathinarayanan vs Sankara Thanu @ Sankaralingam
2021 Latest Caselaw 14067 Mad

                                                                               S.A.(MD)No.336 of 2011

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED: 14.07.2021

                                                       CORAM:

                              THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                             S.A.(MD)No.336 of 2011
                                                      and
                                              M.P.(MD)No.1 of 2011

                   Aathinarayanan                         ... Appellant/Appellant/1st Defendant

                                                       -Vs-


                   1.Sankara Thanu @ Sankaralingam
                                                   .. 1st Respondent / 1st Respondent / Plaintiff
                   2.Jeyakumar
                   3.Bagavathiammal                ... 2 & 3 Respondents/ 2 & 3 Respondents /
                                                                                 2 & 3 Defendants


                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                   Code, to set aside the judgment and decree passed in A.S.No.12 of 2010 on
                   the file of     the 1st Additional Sub Court, Nagercoil, dated 24.09.2010
                   confirming the judgment and decree in O.S.No.342 of 2007 on the file of
                   the first Additional District Munsif Court, Nagercoil, dated 23.11.2009.


                                       For Appellant          : Mr.R.T.Arivu Kumar
                                                                  for Mr.S.Meenakshi Sundaram
                                       For R1                 :
                                       For R2 & R3        : No appearance
https://www.mhc.tn.gov.in/judis/


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                                                                           S.A.(MD)No.336 of 2011



                                                      JUDGMENT

The first defendant in O.S.No.342 of 2007 on the file of the first

Additional District Munsif Court, Nagercoil is the appellant in this second

appeal. The suit was instituted by the first respondent herein namely

Sankara Thanu @ Sankaralingam.

2.The case of the plaintiff was that the suit items that are two in

number belonged to Kutti Nadar. The appellant herein was shown as the

first defendant. The second defendant Jeyakumar was the another son of

Kutti Nadar, while the third defendant Bagavathiammal was the wife of

Kutti Nadar.

3.The plaintiff sought only 1/4th share in the suit property. The

parties were already at logger heads. Originally, the appellant

Aathinarayanan claimed that he was the son of Kutti Nadar and sought

share in the properties that belonged to Kutti Nadar. That claim was resisted

by the present respondents on the ground that Aatthinarayanan/appellant

herein was born to the brother of Kutti Nadar namely Subramanian Nadar.

However, it was declared that the appellant Aathinarayanan is very much

the son of the Kutti Nadar. That declaration has become final also.

https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.336 of 2011

4. But in the present round, even though the status of Aathinarayan is

not questioned, the appellant pleaded that the property in question belonged

to Subramanian Nadar and not to Kutti Nadar. Both the parties adduced

oral as well as the documentary evidence. The trial Court, by judgment and

decree dated 23.11.2009, gave a categorical finding that the property in

question belonged only to Kutti Nadar and not to Subramanian Nadar and

granted preliminary decree accordingly. The said finding was also

confirmed by the first appellate Court in A.S.No.12 of 2010 on the file of

the first Additional Sub Court, Nagercoil on 24.09.2010. Challenging the

same, this second appeal has been filed. The second appeal has not been

admitted so far, though notice was ordered.

5. The learned counsel appearing for the appellant reiterated all the

contentions set out in the memorandum of grounds and called upon this

Court to formally formulate the substantial question of law and admit the

second appeal and thereafter, take it up for final disposal.

6. Per contra, the learned counsel appearing for the respondents

submitted that no substantial question of law arises for determination and

called upon this Court to dismiss the second appeal. https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.336 of 2011

7. I carefully considered the rival contentions and went through the

evidence on record.

8. As rightly pointed out by the learned counsel appearing for the

respondents, the appellant himself had dealt with the suit properties as if

they are the properties of Kutti Nadar that is evident from Ex.A1 mortgage

deed dated 11.02.1994, Ex.A4 settlement deed dated 17.03.2008 and Ex.A5

settlement deed dated 27.07.2007. Therefore, the appellant is now estopped

from contending to the contrary. The Courts below have correctly

appreciated the evidence on record and rejected the defence of the appellant

and no substantial question of law arises for consideration. I do not find

any merit in the second appeal. The second appeal stands dismissed. No

costs. Consequently, connected miscellaneous petition is closed.

14.07.2021

Internet : Yes/No Index : Yes/No rmi

https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.336 of 2011

To

1.The 1st Additional Sub Court, Nagercoil.

2.The first Additional District Munsif Court, Nagercoil.

3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.336 of 2011

G.R.SWAMINATHAN.J.,

rmi

Judgment made in S.A.(MD)No.336 of 2011 and M.P.(MD)No.1 of 2011

14.07.2021

https://www.mhc.tn.gov.in/judis/