Madras High Court

P.Ramachandran vs A.Chinnarasu on 25 June, 2021

                                                                             S.A.No.476 of 2021



                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                Dated : 25.06.2021
                                                     Coram
                                    THE HONOURABLE MR. JUSTICE M.SUNDAR
                                               S.A.No.476 of 2021
                                                      and
                                              C.M.P.No.9081 of 2021

                  P.Ramachandran
                  S/o.Pavadi                                                .. Appellant

                                                        Vs.
                  Ayil Naidu (Deceased)

                  1. A.Chinnarasu
                     S/o.Annamalai @ Arunagiri

                  2. The Sub Registrar Join-I
                     Rep by its Tamil Nadu Government
                     Sub Registrar Office
                     Kallakurichi Taluk
                     Villupuram District (Now Kallakuruchi District)

                  3. Vijayalakshmi
                     W/o.Ayil Naidu

                  4. Kalaivani
                     W/o.Sasikumar

                  5. Amudha
                     W/o.Gunabalan

                  6. Venkatraman
                     S/o.Ayil Nadiu                                    .. Respondents


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                                                                                    S.A.No.476 of 2021



                            Second Appeal under Section 100 of CPC to set aside the judgement
                  and decree passed by the Principal Subordinate Judge, Kallakurichi in
                  A.S.No.83/2017 dated 22.12.2020 by confirming the judgment and decree on
                  the file of I Additional District Munsif Court, Kallakurichi in O.S.No.357 of
                  2013 dated 31.08.2017.
                                   For Appellant           :     Mr.G.Ranganathan
                                                         ----


                                                   JUDGMENT

A plaintiff, who launched a suit on 06.12.2013 against his sibling

(blood brother) claiming preferential right to buy out immovable properties

i.e., right of pre-emption qua suit properties, after being non-suited by two

successive concurrent decrees by the trial Court and the First Appellate

Court, is before this Second Appeal Court as lone appellant in the captioned

Second Appeal.

2. In the hearing today, captioned Second Appeal is listed under cause

list caption 'FOR ADMISSION' and Mr.G.Ranganathan, learned counsel for

lone appellant is before this Virtual Court.

3. Facts are fairly simple, essential facts imperative for appreciating

this judgment are that one P.Ramachandran, plaintiff launched a suit arraying

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his blood brother Ayil Naidu, a proposed alienee one Chinnarasu and

jurisdictional Sub-Registrar as defendants 1 to 3 respectively; that the prayer

in the suit is for declaration that the plaintiff has vested interest in the suit

properties besides a prayer for restraining defendants from alienating suit

properties; that the prayer (in the opinion of this Court) is not happily

worded, but submission of learned counsel for appellant is that it is

essentially a prayer to assert purported right of plaintiff under Section 22 of

the 'Hindu Succession Act, 1956' [hereinafter 'said Act' for the sake of

convenience and clarity]; that as already mentioned supra, the plaint was

presented on 06.12.2013; that there are as many as 12 items of properties

which have been adumbrated as plaint schedule properties; that plaintiff's

pleadings is to the effect that suit properties are ancestral properties of

plaintiff and first defendant, therefore, he is entitled to right of pre-emption

under section 22 of said Act; that first defendant resisted the suit primarily on

the ground that post demise of mother of plaintiff and first defendant there

was a partition as early as on 03.10.1988 between plaintiff, first defendant

and two other brothers vide a registered partition deed dated 03.10.1988

(Ex.A1 ? Ex.B1); that post partition, first defendant had purchased

properties which fell to the shares of two other brothers vide two registered

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sale deeds dated 16.09.2000 and 10.07.2006 (Ex.B2 and Ex.B3 respectively);

that after full contest, the trial Court non-suited the plaintiff i.e., dismissed

the suit inter-alia holding that post partition and acquiring of shares which

fell to the shares of two other brothers by a registered sale deed by the first

defendant, suit properties ceased to have the character of 'any immovable

property of an intestate' and therefore, the right of pre-emption cannot be

exercised; that the matter was carried in appeal by way of a regular first

appeal under Section 96 of 'The Code of Civil Procedure, 1908' [hereinafter

'CPC' for the sake of brevity, convenience and clarity] vide A.S.No.83 of

2017 on the file of the 'Principal Subordinate Judge's Court, Kallakurichi'

[hereinafter 'First Appellate Court' for the sake of convenience and clarity],

which after full contest dismissed the first appeal in and by judgment and

decree dated 22.12.2020 confirming the dismissal of O.S.No.357 of 2013 on

the file of 'I Additional District Munsif Judge's Court,

Kallakurichi' [hereinafter 'trial Court' for the sake of convenience and

clarity]; that non-suited plaintiff, who suffered two successive concurrent

decrees is before this Court vide captioned Second Appeal which is

obviously under Section 100 of CPC.

4. Learned counsel for appellant projected and predicated his

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arguments on a lone point and that lone point is that the trial Court and the

First Appellate Court have proceeded on the basis that plaint schedule

properties are agricultural properties and Section 22 of the said Act is not

applicable to agricultural lands. Learned counsel went on to draw the

attention of this Court to ground No.6 in the memorandum of grounds of

appeal wherein there is a reference to Baburam case being Babu Ram Vs.

Santokh Singh (Deceased) through his LR's and others reported in 2019

(2) CTC 562. Placing reliance on this judgment, learned counsel submitted

that both the Courts below fell in error in holding that Section 22 of said Act

is not applicable to agricultural properties and therefore, both the Courts

below fell in error in non-suiting the plaintiff on the ground that suit

properties are agricultural lands.

5. This Court now, embarks upon the exercise of setting out its

discussions and giving its dispositive reasoning on the basis of perusal of

case file and submissions of learned counsel for appellant.

6. A careful perusal of the case file reveals that the trial Court and the

First Appellate Court have not non-suited the plaintiff on the sole ground that

the suit properties are agricultural lands and Section 22 of the said Act is not

applicable to agricultural lands though both the Courts below have

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mentioned this as one of the findings/reasons. If that was a lone

finding/reason due to which the plaintiff has been non-suited, the dynamics

and dimensions of this second appeal may well have been different but it is

not so. Both the Courts below have noticed that even according to plaintiff's

pleadings post demise of mother of plaintiff and first defendant

(Pappathiammal) who died intestate four sons of Pappathiammal i.e.,

plaintiff, first defendant and two brothers namely, Pandurangan and Muthu

partitioned the suit properties amongst themselves in and by a registered

partition deed dated 03.10.1988 (Ex.A1 ? Ex.B1). This partition deed was

not subjected to any disputation in the Courts below. On the contrary, this

partition deed was filed and marked as an exhibit by both plaintiff and first

defendant i.e., as Ex.A1 and Ex.B1. It is also a categorical pleading of

plaintiff that post partition, the first defendant purchased the properties that

fell to the shares of two brothers Pandurangan and Muthu. It is to be noted

that sale deeds, under which, first defendant purchased the properties which

fell to the shares of two brothers Pandurangan and Muthu in 2000 and 2006

vide registered sale deeds dated 16.09.2000 and 10.07.2006 have also been

marked as Ex.B2 & Ex.B3. After all this and more particularly, more than 23

years after partition on 03.10.1988 the suit claiming right of pre-emption was

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presented in the trial Court by plaintiff on 06.12.2013. First Appellate Court

has extensively dealt with this position and this Court is clear in its mind that

the First Appellate Court is also a Court of fact albeit the last Court of fact as

the First Appellate Court has exercised its powers under Section 96 of CPC

which is amply wide to take under its wings this legal drill when exhibits

have been marked and oral evidence has been recorded in this regard in the

trial Court.

7. Right of pre-emption under Section 22 of said Act is available to

'immovable property of an intestate'. Post demise of mother of plaintiff and

first defendant, on admitted execution of a registered partition deed dated

03.10.1988 amongst four sons and further sale of shares of two brothers

Pandurangan and Muthu to first defendant by way of registered sale deeds in

2000 and 2006 vide Ex.B2 & Ex.B3 (16.09.2000 and 10.07.2006

respectively), the suit properties ceased to have the character of 'immovable

property of an intestate'. To be noted, the plaintiff is a party to the partition

deed and he does not dispute the partition deed. Pleadings of plaintiff in this

regard, particularly, paragraph No.4 of plaint is a clincher. Paragraph No.4

reads as follows:

'The suit properties are the ancestral properties of the

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plaintiff and the 1st defendant. The plaintiff and the 1st defendant have other two brothers named Muthu Naidu and Panduranga Naidu. The suit properties were purchase by the Papathi ammal i.e., the mother of plaintiff and 1st defendant. As the said papathi ammal died intestate the plaintiff along with his brothers divided the suit properties along with some other items through a registered settlement deed dated 3.10.1988. Through the partition deed the A schedule of properties was allotted to the plaintiff, B to the Pandurangan, C to one Muthu Naidu and the D Schedule to the 1st defendant. But the said properties were in the possession and enjoyment of the plaintiff till now as the family and the suit properties was in joint holdings and the shares of the brothers were not demarcated properly.'

8. Besides aforementioned pleadings in paragraph No.4 of plaint, as

already alluded to supra, the plaintiff himself has marked the registered

partition deed dated 03.10.1988 as Ex.A1 which has also been set out supra.

First defendant has also marked this partition deed as Ex.B1 and there is

nothing to show any objection to this partition deed qua marking or any other

disputation. This by itself draws the curtains on the plaintiff's campaign qua

purported right of pre-emption under Section 22 of said Act.

9. As a last submission, learned counsel for appellant submitted that

the properties have been alienated pending suit and his rights to assail the

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sale deed should be preserved. This Court deems it appropriate to not to

express any view on this plea as according to this Court that would be

outside the realm of captioned second appeal under Section 100 of CPC.

10. Reverting to Section 100 of CPC, a second appeal should

necessarily turn on a substantial questions of law. The expression 'substantial

questions of law' occurring in Section 100 of CPC has been elucidatively

explained in a long line of case laws starting from Rimmalapudi Subba Rao

case [Rimmalapudi Subba Rao Vs. Noony Veeraju and others reported in

AIR 1951 Mad 969 (FB)] to Santosh Hazari's case [Santosh Hazari Vs.

Purushottam Tiwari reported in (2001) 3 SCC 179]. This Rimmalapudi

principle has been subsequently approved by a Constitution Bench of

Hon'ble Supreme Court in Sir Chunilal V.Mehta Vs. Century Spinning and

Manufacturing Co. Ltd. reported in AIR 1962 SC 1314. Thereafter, in

Santosh Hazari case being Santosh Hazari Vs. Purushottam Tiwari

reported in (2001) 3 SCC 179, the view taken in Sir Chunilal Mehta's case,

affirming the view taken by Full Bench of this Court was reiterated. This

Court deems it appropriate to not to burden this judgment with extracts from

these case laws as that may lead to making this judgment verbose. Suffice to

say that this principle is the obtaining position of law and it continues to

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govern the field as these principles have been followed by Hon'ble Supreme

Court as recently as on 27.08.2020 in Nazir Mohamed case [Nazir

Mohamed Vs. J.Kamala, reported in (2020) SCC OnLine SC 676].

11. Hon'ble Supreme Court in Kirpa Ram principle being reiteration of

position of law in Kirpa Ram Vs. Surendra Deo Gaur and others reported

in 2020 SCC Online SC 935 has made it clear that a second appeal can be

dismissed at the admission stage without formulation of substantial question

of law if none arises in a given case. In the instant case, in the light of the

discussion and dispositive reasoning set out supra, this Court is of the view

that no substantial question of law much less the three questions proposed as

substantial questions of law by the protagonist of captioned second appeal in

the memorandum of grounds of appeal arise in the case on hand. Three

questions proposed as substantial questions of law by protagonist of

captioned second appeal read as follows:

'a) Whether the Courts below are right in hold the burden of proof is right on the Appellant?

b) Whether the Courts below had considered the Exhibits relied by the appellant in a prescribed manner?

c) Whether the Court below finding the agricultural land come to the preview of the Section 22 of Hindu Succession Act,

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1956?'