Madras High Court
Nagammal vs Neelavathi on 30 June, 2021
S.A.No.450 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 30.06.2021
Coram
THE HONOURABLE MR. JUSTICE M.SUNDAR
S.A.No.450 of 2021
&
C.M.P.No.8718 of 2021
1. Nagammal
2. Latha
3. Usha
4. Jagan
5. Bharathi .. Appellants
Vs.
Neelavathi .. Respondent
Second Appeal filed under Section 100 of the Code of Civil Procedure,
1908 to set aside the judgment and decree dated 21.10.2019 passed in
A.S.No.5 of 2016 on the file of the Subordinate Judge, Tirupattur at Vellore
District, confirming the decree and judgment dated 29.04.2015 passed in
O.S.No.57 of 2011 on the file of the Principal District Munsif of Tirupattur,
Vellore District.
For Appellants : Mr.S.Subbiah
Senior Counsel
for Ms. Elizabeth Ravi
1/10
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S.A.No.450 of 2021
For Caveator : Mr.S.V.Karthikeyan
JUDGMENT
Mr.S.Subbiah, learned senior advocate instructed by counsel on record
for five appellants Ms. Elizabeth Ravi and Mr.S.V.Karthikeyan, learned
counsel, who has lodged a caveat on behalf of lone respondent in the
captioned second appeal, are before this Virtual Court.
2. At the outset it is made clear that a very interesting scenario unfurls
in this matter, in the admission board hearing in this second appeal Court.
3. Facts are fairly simple. Appellants 1 to 5 in captioned second
appeal arraying themselves as plaintiffs 1 to 5 respectively filed a suit in
O.S.No.57 of 2011 on the file of 'Principal District Munsif's Court,
Tirupattur, Vellore District' (hereinafter 'trial Court' for the sake of brevity)
with prayers inter alia for declaration of title and permanent injunction qua
suit properties. The lone respondent in captioned second appeal, who is none
other than sister-in-law of first plaintiff and paternal aunt (father's blood
sister) of plaintiffs 2 to 5, was arrayed as lone defendant.
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S.A.No.450 of 2021
4. From hereon in this judgment, parties shall be referred to by their
respective ranks in the trial Court for the sake of convenience and clarity.
5. The pleadings in the trial Court and the issues on which the parties
went to trial Court which are absolutely essential and imperative for
appreciating this judgment are that there is no dispute that the suit properties
originally belonged to one Kalli Gounder who died in 1951; that Kalli
Gounder had two children, namely a son and daughter, son being
K.K.Shanmugam (spouse of first plaintiff and father of plaintiffs 2 to 5) and
the daughter being Neelavathi, the lone defendant; that post demise of Kalli
Gounder in 1951 his son K.K.Shanmugam died in 1996 after which Kalli
Gounder's wife Papathiyammal died in 2003; that the defendant in the trial
Court took a plea that she also has a share in the suit properties besides
predicating her claim on a settlement deed dated 15.07.2012 (Ex.B6) said to
have been executed by Papathiyammal qua a part of the suit properties.
6. As already alluded to supra, trial Court framed four issues primarily
pertaining to title and possession, the parties went to trial on those four
issues.
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S.A.No.450 of 2021
7. After trial/ full contest, trial Court dismissed the suit albeit without
costs in and by judgment and decree dated 29.04.2015. This judgment
proceeds on the basis that on the demise of Kalli Gounder his wife
Papathiyammal and K.K.Shanmugam got shares in the suit properties and
while Shanmugam's share devolved on the plaintiffs after his demise in 1996,
the share of Papathiyammal devolved on the defendant on her demise in
2003.
8. Owing to the interesting trajectory this matter is taking, it may not
be necessary to delve any further on the discussion and dispositive reasoning
of the trial Court. Suffice to say that the five plaintiffs carried the matter in
appeal by way of a regular first appeal under Section 96 of 'The Code of
Civil Procedure, 1908' ('CPC' for the sake of brevity) vide A.S.No.5 of 2016
on the file of 'Subordinate Judge's Court, Tirupattur at Vellore District' ('first
Appellate Court' for the sake of convenience and clarity) and the first
Appellate Court after full contest, dismissed the first appeal in and by
judgment and decree dated 21.10.2019 confirming the dismissal of the suit
i.e., non-suiting of the plaintiffs by the trial Court, as against which the five
plaintiffs have filed the captioned second appeal.
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S.A.No.450 of 2021
9. Learned senior counsel for plaintiffs (appellants) submitted that the
Courts below have lost sight of the operation of 'The Hindu Women's Right
to Property Act, 1937 (Act XVIII of 1937)' as that was in vogue in 1951 on
the date of demise of Kalli Gounder. Learned senior counsel went on to
submit that Kalli Gounder's spouse Papathiyammal could have at best got a
coparcenary interest and unless she asserts her coparcenary interest by filing
a suit for partition, there shall be no severance, but she did not file a
partition suit qua her coparcenary interest and therefore on her demise her
rights lapsed into and merged with the rights of other coparceners. However,
the point remains that it cannot be gainsaid that defendant has no share or
interest as she is K.K.Shanmugam's sister. Therefore, notwithstanding the
reasons on which the plaintiffs were non-suited, it unfurls that the defendant
does have a share in suit properties and therefore, the Courts below
proceeding on the basis that a suit for declaration of absolute title and
injunction qua suit properties cannot be decreed may fall into the category of
a correct decree albeit posited on a possible wrong dispositive reasoning.
10. In the above setting / scenario, caveator counsel was given
audience though under normal circumstances caveator counsel would be
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S.A.No.450 of 2021
heard only with regard to interim orders as caveator counsel cannot oppose
admission. Therefore, this Court had the benefit of hearing the counsel for
plaintiffs (appellants) as well as the counsel for defendant (respondent who
had lodged caveat).
11. As already alluded to supra, owing to the trajectory this matter is
taking, this Court deems it appropriate to not to delve much into the
discussion and dispositive reasoning of the Courts below. This is more so as
both sides i.e., learned senior counsel for plaintiffs and learned counsel for
defendant agreed that a suit for partition by either parties or any of the parties
to the lis would certainly be the way out and both learned counsel submitted
that if the findings in the two judgments / decrees which culminated in
captioned second appeal do not impede such a course if taken by the parties
and if all questions, rights and contentions of the parties are left open, the
captioned second appeal can be disposed of by a consent judgment.
12. Kirpa Ram principle being principle laid down by Hon'ble
Supreme Court in Kirpa Ram Vs. Surendra Deo Gaur and others reported
in 2020 SCC Online SC 935 is to the effect that a second appeal can be
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S.A.No.450 of 2021
given a closure at the admission stage without formulation of substantial
question/s of law if none arises. Drawing inspiration from Kirpa Ram
principle, by consent of both sides, the following consent judgment is
passed:
a) Though no substantial question of law arises instead of
dismissal, there shall be disposal of the second appeal on the lines
adumbrated / delineated infra.
b) If any or some of the parties to the lis i.e., the five
plaintiffs (five appellants) or the lone defendant (lone respondent)
choose to file a partition suit, the same shall be tried on its own
merits without the judgments that have culminated in the
captioned second appeal or this judgment in the second appeal
impeding the same or coming in the way. In other words, the suit
will be tried untrammelled by the proceedings/judgments that have
culminated in the captioned second appeal and this judgment in
the second appeal. Though obvious, for the purpose of specificity
it is made clear that all questions, rights and contentions of parties
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S.A.No.450 of 2021
to the lis irrespective of whether they were raised and contested
one way or the other or not in the proceedings that have led to the
captioned second appeal are left open for being adjudicated upon
on their own merits and in accordance with law, if there be a fresh
suit.
13. This consent judgment is to avoid prolongation of the age of the lis
as the lis is already more than one decade old, the original suit having been
presented in the trial Court on 25.01.2011.
14. In making the above consent judgment, this Court has also borne
in mind the observation of Hon'ble Supreme Court in Nazir Mohamed case
being Nazir Mohamed Vs. J.Kamala reported in 2020 SCC OnLine SC 676
wherein it was observed 'paramount overall consideration is the need for
striking a judicious balance between the indispensable obligation to do
justice at all stages and impelling necessity of avoiding prolongation in the
life of a lis'.
15. This Court deems it appropriate to place on record its appreciation
for the fair approach of learned Senior counsel and counsel on record for
agreeing to the aforementioned consent judgment.
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S.A.No.450 of 2021
16. This consent judgment has been made considering the proximity of
relationship of parties, the trajectory the matter has takem, the stated position
the parties took in this case on hand and therefore shall not serve as a
precedent in days to come.
Captioned second appeal closed and disposed of by consent judgment
on aforementioned terms. Consequently, C.M.P.No.8718 of 2021 is also
closed. There shall be no order as to costs.
30.06.2021
Speaking order: No
Index: No
gpa
To
1. The Subordinate Judge
Tirupattur at Vellore District
2. The Principal District Munsif
Tirupattur, Vellore District
https://www.mhc.tn.gov.in/judis/
S.A.No.450 of 2021
M.SUNDAR.J.,
gpa
S.A.No.450 of 2021 &
C.M.P.No.8718 of 2021
30.06.2021
https://www.mhc.tn.gov.in/judis/
