Madras High Court
Karunakaran vs Mookammal on 30 June, 2021
1 S.A.(MD)NO.606 OF 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.06.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.606 of 2006
and
CROSS OBJECTION(MD)No.26 of 2006 &
C.M.P.(MD)No.1 of 2006
S.A.(MD)No.606 of 2006
1. Karunakaran
2. Ayyammal
3. Ponnuthayi
4. Rajathi ... Appellants/ Respondents 1 to 4/
Defendants 1 to 4
Vs.
1. Mookammal ... Respondent No.1/Appellant/
Plaintiff
2. Seeniyammal
3. Palaniyammal ... Respondents 2 & 3/
Respondents 5 & 6/
Defendants 5 & 6
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree dated 23.09.2004
made in A.S.No.39 of 2002 on the file of the Subordinate
Judge, at Periyakulam, partly allowing the Judgment and
Decree dated 16.07.2001 in O.S.No.765 of 1993 on the file of
the District Munsif, Uthamapalayam.
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2 S.A.(MD)NO.606 OF 2006
For Appellants : Mr.K.Govindarajan
For R-1 : Mr.M.V.Venkata Seshan,
For R-2 & R-3 : No appearance.
***
CROSS OBJECTION(MD)No.26 of 2006
Mookkammal ... Cross appellant/1st Respondent/
Appellant/Plaintiff
Vs.
1. Karunakaran
2. Ayyammal
3. Ponnuthayi
4. Rajathi ... Respondents/Appellants/
Respondents 1 to 4/Defendants 1 to 4
5. Seeniammal
6. Palaniammal ... Respondents/Respondents 2&3/
Respondents 5&6/Defendants 5&6
Prayer: Cross Objection filed under Order XLI Rule
22 r/w. Section 100 of C.P.C., to allow the cross appeal setting
aside the Judgment and Decree dated 23.09.2004 made in
A.S.No.39 of 2002 on the file of the Subordinate Court,
Periyakulam, so far as the cross appellant is concerned and
thereby decree in O.S.No.765 of 1993 on the file of the
District Munsif Court, Uthamapalayam.
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3 S.A.(MD)NO.606 OF 2006
For Cross Objector: Mr.M.V.Venkata Seshan
For R-1 to R-4 : Mr.K.Govindarajan
For R-5 & R-6 : No appearance.
***
COMMON JUDGMENT
This second appeal arises out of partition suit
proceedings.
2. The first respondent herein, namely, Mookammal
filed O.S.No.765 of 1993 before the District Munsif Court,
Uthamapalayam for partition of her 14/24th share in the suit
items. The case of the plaintiff is that the suit properties
originally belonged to her father Annamalai Thevar @ Chinna
Annamalai Thevar. Chinna Annamalai Thevar had married
three women, namely, Karuppayi, Mariyammal and
Chinnathayi. The plaintiff was born through Karuppayi. The
defendants were children born to Mariyammal and Chinna
Thayi. The defendants filed written statement denying the
plaint averments. The plaintiff examined herself as P.W.1 and
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4 S.A.(MD)NO.606 OF 2006
one Nagappan as P.W.2. Ex.A.1 to Ex.A.6 were marked. The
first defendant examined himself as P.W.1 and one
Veerabuthiran as D.W.2. Ex.B.1 to Ex.B.16 were marked. After
a consideration of the evidence on record, the trial Court
dismissed the suit by judgment and decree dated 16.07.2001.
Questioning the same, the plaintiff filed A.S.No.39 of 2002
before the Sub Court, Periyakulam. The first appellate Court
noted that the trial Court had given a categorical finding that
the plaintiff Mookammal was very much the daughter of
Chinna Annamalai Thevar through Karuppayi. It also noted
that the defendants have not filed any cross appeal
challenging the said finding. The first appellate Court also
noted that the suit items 10, 13, 14 and 16 are the absolute
properties of the respective defendants and denied the case of
the plaintiff in respect of those three items. However, the
plaintiff was given 1/9th share in respect of other items. They
were found to be ancestral properties of Chinna Annamalai
Thevar. Challenging the same, some of the defendants have
filed this second appeal.
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5 S.A.(MD)NO.606 OF 2006
3. The second appeal was admitted on the following
substantial questions of law:-
“i) Have not the appellate Court
committed an error in accepting the findings of
the trial Court on the ground that there is no
appeal against the said findings when the
appellant herein is not entitled to maintain the
appeal as against such findings? Vide 2000 (1)
LW 143.
ii) Have not the appellate Court
committed an error in not considering the case
of the appellant herein as per Order 41 Rule 33
of C.P.C.?
iii) Whether in law Ex.A.1 will establish
the paternity of the first respondent herein,
when there is no reference of the first
respondent's name in the said certificate?”
4. The plaintiff had also filed cross objection.
5. The learned counsel appearing for the appellants
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6 S.A.(MD)NO.606 OF 2006
reiterated all the contentions set out in the memorandum of
grounds and submitted that this Court should answer the
substantial questions of law in favour of the appellants and
allow this appeal and set aside the impugned judgment and
decree passed by the first appellate Court and restore the
decision of the trial Court.
6.Per contra the learned counsel appearing for the
plaintiff submitted that the impugned judgment and decree
passed by the first appellate Court may be confirmed as far as
the plaintiff is concerned and prayed for allowing cross
objection. According to them, the first appellate Court ought
to have decreed the suit as prayed for and erred in granting
1/9th share in respect of only some of the suit items. He prays
for allowing the cross objection.
7. I carefully considered the rival contentions and
went through the evidence on record.
8.I sustain the submission of the learned counsel
appearing for the appellants that merely because there was no
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7 S.A.(MD)NO.606 OF 2006
cross appeal, the finding of the trial Court ought to have been
confirmed. Even though I answer first and second substantial
questions of law in favour of the appellants, the same cannot
result in allowing the appeal. As rightly pointed out by the
learned counsel appearing for the plaintiff, the eventual
finding of the Court below does not rest on the non-filing of
cross objection or cross appeal by the defendants. The first
appellate Court had considered the other evidence on record
and had come to the conclusion that Mookammal/plaintiff was
the daughter of Chinna Annamalai Thevar. The trial Court had
also considered the factual aspects and come to the said
conclusion. When the Courts below have concurrently found
that the plaintiff was the daughter of Chinna Annamalai
Thevar, in exercise of my jurisdiction under Section 100 of
C.P.C., I do not find any ground to interfere with the said
finding. Once it is found that Mookammal was the daughter of
Chinna Annamalai Thevar, the preliminary decree passed by
the first appellate Court does not call for any interference. I do
not find any merit in this appeal. The second appeal is
dismissed.
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8 S.A.(MD)NO.606 OF 2006
9.The plaintiff of course has filed cross
appeal(MD)No.26 of 2006. It does not appear to have been
admitted till date. The cross appeal also will have to be
specifically admitted and that too only if it involves substantial
questions of law. In the case on hand, the Court below has
given a finding that Karunakaran, S/o. Chinna Annamalai
Thevar was entitled to 50% share in the ancestral property.
Items 10, 13, 14 and 16 stand in the individual names of some
of the defendants. Specific finding has been given that they
are not ancestral properties. Therefore, the plaintiff was
denied share in those four items and in respect of other suit
items, she has been granted 1/9th share and Karunakaran,
S/o.Chinna Annamalai Thevar was entitled to 1 / 2 share.
10.I do not find any substantial question of law
arising for determination in the cross objection. The cross
objection is dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
30.06.2021
Index : Yes / No
Internet : Yes/ No
PMU
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9 S.A.(MD)NO.606 OF 2006
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 Judge, Periyakulam.
2. The District Munsif,
Uthamapalayam.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court.
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10 S.A.(MD)NO.606 OF 2006
G.R.SWAMINATHAN, J.
PMU
S.A.(MD)No.606 of 2006 and
CROSS OBJECTION(MD)No.26 of 2006
30.06.2021
https://www.mhc.tn.gov.in/judis/
