Madras High Court
R.Periyasamy ... 5Th Defendant / vs C.Marappan on 19 July, 2021
S.A.(MD)No.418 of 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.418 of 2007
and
M.P.(MD)No.1 of 2007
R.Periyasamy ... 5th Defendant / Appellant / Appellant
-Vs-
Chellappa Gounder (died)
1.C.Marappan
2.C.Ramasamy ... Plaintiffs 2 & 3 / Respondents 2 & 3/
Respondents
3.Viswanathan
4.Chellammal
5.Veerappan
6.Lakshmi
7.Karpagam
8.Kumar ... Defendants 1 to 3 & 6 to 8/ Respondents 4 to 6 & 8 to 10
Respondents
PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
Code, to set aside the decree and judgment dated 31.07.2006 made in
A.S.No.32 of 2005 on the file of the Subordinate Court, Karur, in
confirming the judgment and decree dated 28.02.2005 made in O.S.No.552
of 2001 on the file of the Additional District Munsif Court, Karur.
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1/8
S.A.(MD)No.418 of 2007
For Appellant : Mr.J.Parekh Kumar
For R1 & R2 : No appearance
For R3 to R8 : exparte
JUDGMENT
This second appeal arises out of partition suit proceedings.
The respondents 1 and 2 herein along with their father had filed O.S.No.552
of 2001 on the file of the Additional District Munsif, Karur seeking the
relief of partition. During the pendency of the suit, the father of R1 and R2
passed away.
2. The case of the plaintiffs is that the suit property belonged to one
Chellappa Gounder. Chellappa Gounder had three sons namely Rasappan,
Veerappan and Kittusamy and one daughter by name Arayee Ammal.
Arayee Ammal got married to the first plaintiff and through him, begot the
other two plaintiffs / R1 & R2 herein. According to the plaintiffs, the suit
property was not divided. However, the other co-sharers have fraudulently
sold the major portion of the suit property in favour of the fifth defendant
Periyasamy. The plaintiffs contended that they can ignore the said sale and
ask for partition. With such plaint averments, the suit was laid. The
3rd defendant namely Veerappan filed written statements controverting the
plaint averments. The fifth defendant / appellant herein also filed written
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S.A.(MD)No.418 of 2007
statement opposing the suit claim. Based on the divergent pleadings, the
trial Court framed the necessary issues. The second plaintiff Marappan
examined himself as P.W.1 and one Duraisamy as P.W.2. Ex.A1 to Ex.A12
were marked. The appellant examined himself as D.W.1. Viswanathan / D1
examined himself as D.W.3. One Nachimuthu was examined as D.W.2.
Ex.B1 to Ex.B.14 were marked. After considering the evidence on either
side, the Court below passed preliminary decree allotting 5/80th share in the
suit properties. Aggrieved by the same, the appellant filed A.S.No.32 of
2005 before the Sub Court, Karur. By judgment and decree dated
31.07.2006, the decision of the trial Court was confirmed and the first
appeal was dismissed. Questioning the same, this second appeal came to be
filed.
3. The second appeal was admitted on the following substantial
questions of law:-
“(1) Whether the Courts below are correct in law in holding
that the respondents' mother was entitled to 5/80 shares in the suit
properties, which belonged to the undivided Hindu joint family when
the kartha of joint family property namely Chellappa Gounder died
prior to the Hindu Succession Act, 1956?
2. Is it correct in law even assuming without admitting that the
respondents' mother was entitled to any share in the suit properties,
the right of her has not been ousted, when the vendors of the
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S.A.(MD)No.418 of 2007
defendant / appellant are enjoying the property for more than the
statutory period and having the revenue records in their name in
respect of the suit properties.?”
4. Though the contesting respondents were served and their names
have been printed in the cause list, there is no appearance on their behalf.
The learned counsel appearing for the appellant reiterated all the
contentions set out in the memorandum of grounds and called upon this
Court to answer the substantial questions of law in favour of the appellant
and allow this appeal by setting aside the impugned judgment and decree.
He submitted that Chellappa Gounder, in whose name the suit property
originally stood, died prior to 1956. He drew my attention to the testimony
of D.W.3-Viswanathan and contended that Chellappa Gounder must have
died even prior to 1951. Viswanathan was aged about 69 years, when he
deposed as witness in the year 2006. It means that he was born in the year
1951. Viswanathan had specifically testified that his grand father Chellappa
Gounder died even before his birth. According to him, it was the duty of
the plaintiffs to establish by positive evidence that Chellappa Gounder was
very much alive even after 1956, when Hindu Succession Act came into
force. Since they have failed to prove the same, they ought to have been
non-suited. He also pointed out that Arayee Ammal got married long time
ago. In fact, she died several years prior to the filing of the suit. The suit
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S.A.(MD)No.418 of 2007
property was being enjoyed by the vendors of the appellant as their own
absolute properties. He pointed out that the suit property was the self
acquired property of Chellappa Gounder. The Court below clearly gave a
finding that the properties in question are ancestral properties of Chellappa
Gounder. The plaintiff could have claimed share in the ancestral property
of Chellappa Gounder, only if they could show that Chellappa Gounder was
alive even post 1956. Therefore, he submitted that the substantial questions
of law may be answered in favour of the appellant.
5. I carefully considered the contentions of the learned counsel
appearing for the appellant and went through the evidence on record. In the
plaint, an averment had been made that Chellappa Gounder grand father of
R1 and R2 herein died 35 years prior to the institution of the suit. The suit
was filed in the year 2001. The stand of the defendants was that Chellappa
Gounder died some 45 years prior to the filing of the suit and it is not
correct to state that he died some 35 years prior to the filing of the suit.
The Court below have given a definite finding that the suit properties were
the ancestral of Chellappa Gounder. The appellant does not question the
said finding. The only point that arises for determination is when Chellappa
Gounder passed away. If I conclude that Chellappa Gounder passed away
prior to 1956, then the suit has to be dismissed. If I find that Chellappa
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S.A.(MD)No.418 of 2007
Gounder had died post 1956, then, the plaintiff will obviously have a share
in the properties. The Hindu Succession Act came into force on 17.06.1956.
The present suit was filed on 19.09.2001. In the plaint, it has been averred
that Chellappa Gounder died some 35 years ago. According to the
plaintiffs, Chellappa Gounder died some time in 1966.
6. In the written statement, it has been pleaded that Chellappa
Gounder died some 45 years prior to the filing of the suit. If that be so,
according to the original pleadings, Chellappa Gounder died some time in
1956. The Hindu Succession Act came into force on 17.6.1956. It is only
Viswanathan who had set up a plea in his deposition that Chella Gounder
died prior to his birth. That was not their case in the written statement.
The testimony of Viswanathan runs counter to what has been pleaded in the
written statement. The written statement was filed by Veerappan
Viswanathan's nephew. Viswanathan does not appear to have filed any
written statement. Only during evidence, he introduced the theory that
Chellappa Gounder died prior to his birth. According to Viswanathan, he
was born in the year 1951. It is safe to assume that Rasappan would have
been aged around 25 years in the year 1951. Therefore, Chellappa Gounder
could have been aged around 55 years then. If the appellant wants this
Court to plea that Chellappa Gounder had passed away before 1951, then,
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S.A.(MD)No.418 of 2007
there must be some definite evidence adduced in this regard. Such evidence
is not available. That apart, the family members of Chellappa Gounder have
not come on appeal. It is only the subsequent purchaser who has filed this
appeal.
7. There is no evidence to show that Chellappa Gounder died prior to
17.06.1956. The courts below therefore rightly concluded that the plaintiffs
have a share in the suit property. The plaintiffs were allotted 1/16 th share in
the suit property. A doubt arose in my mind if the plaintiffs are entitled to
the benefit of the amendment made to Section 6 of the Hindu Succession
Act, 1956 as interpreted in Vineeta Sharma Vs. Rakesh Sharma (2020) 9
SCC 1. The answer has to be in the negative because alienation in favour
of the appellant had taken place on 27.08.2001 itself, whereas the suit was
filed only on 19.09.2001. Probably, that is why, the plaintiffs also did not
file any appeal. The substantial questions of law are answered against the
appellant.
8. The second appeal is dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
19.07.2021
Internet : Yes/No
Index : Yes/No
rmi
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.418 of 2007
G.R.SWAMINATHAN.J.,
rmi
To
1.The Subordinate Court, Karur
2.The Additional District Munsif Court, Karur.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.418 of 2007
and
M.P.(MD)No.1 of 2007
19.07.2021
https://www.mhc.tn.gov.in/judis
