Madras High Court
Munia Pillai vs R.Anjalakshi on 28 October, 2021
S.A.No.306 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
S.A.No.306 of 2016
and C.M.P.Nos.9577 of 2018, 5462 of 2020
and 13020 of 2021
1. Munia Pillai
2. Selvaraj
3. Kandan
4. Amulu
5. B.Sangeetha, Minor
6. B.Gunasekar, Minor
(5 and 6 are minors, represented by their mother and
natural Guardian, the 4th appellant)
... Appellants
Vs.
1. R.Anjalakshi
2. Muthu
3. Kullamma
4. Jegannathan (Died)
5. Raja
6. Shantha (Deceased)
7. Gnanakoti
8. Komala
9. Indirani
10.Natarajan
11.Meenakshi
12.Devaki
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13.Parvathy @ Chinnaponnu
Irusa Pillai (Died)
Perundevi (Died)
14. Logu
15. Arputha
Elumalai (Died)
16. Narayanan
17. Lakshmi
18. Mohan
19. Chandrika
20. Sumathi
21.Shanthi
22.Sudha
23.Selvi
24.Andal
25.Hemalatha
26.Narendra Kumar
27.Bharathi
(R25 to 27 brought on record as legal heirs of the deceased
R6 vide order dated 23.11.2018 made in C.M.P.No.9578 of 2018
in S.A.No.306 of 2016 (PTAJ)
... Respondents
PRAYER: The Second Appeal filed under Section 100 of the Civil Procedure
Code against the judgment and decree dated 08.04.2015 passed in A.S.No.165
of 2011 on the file of the XV Additional City Civil Court at Chennai
confirming the judgment and preliminary decree passed in O.S.No.5456 of
2005 dated 20.12.2010 on the file of the VI Assistant Judge, City Civil Court,
Chennai.
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For Appellants : Mr.S.Sadasharam
For Respondents : M/s.Ravichandran Sundaresan
for R25 to R30 and R33 to R35
M/s.D.Nandagopal
for R1, R2, R3, R5, R7 to R12
-----
JUDGMENT
The legalheirs of the 12th defendant in the suit are the appellants in
the present Second Appeal.
2. The suit was filed for partition. Originally, the suit property is said to
have been purchased by one Venkatammal, grand mother and great grand
mother of the parties herein by virtue of a registered document bearing No.1930
of 1911 measuring an extent of 280 x 40 feet with definite boundaries.
Venkatammal died in the year 1944. Therefore, as per the extant law of
succession, the property devolved on female heirs and the sons were excluded
from claiming any right over the property. The said Venkatammal had two
daughters and two sons. One of the sons namely, Chella Pillai, filed a suit
against his brother Saranga Pillai and surviving daughter Kuppammal in the
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year 1963. Other daughter namely, Rathnammal died in the year 1962 and
hence, she was not impleaded as a party to that suit. The District Munsif Court,
Poonamallee, after elaborate trial, decreed the suit in respect of 'A' Schedule
property therein, declaring Chella Pillai and Saranga Pillai, sons of
Venkatammal are entitled to equal share by partition by metes and bounds. In
respect of 'B' Schedule property, which is said to be the suit property in the
present suit, it was declared that it absolutely belongs to the daughters namely,
Kuppammal and Rathnammal.
3. The said Rathnammal had five daughters. The 5 th daughter filed a
suit for partition against other legalheirs of Rathnammal and Kuppammal. The
12th defendant, who is the daughter of Kuppammal had taken a stand that by
virtue of decree passed in O.S.No.756 of 1963, her mother Kuppammal alone is
entitled to absolute right and Rathnammal has no right at all. Further, they
cannot claim any right after a period of 40 years. However, the trial Court has
decreed the suit. On appeal, the same was confirmed. Inveighing the concurrent
findings of the Courts below, the above Second Appeal has been preferred.
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4. The Second Appeal was admitted on the following substantial
questions of law:-
“a. When the deceased mother of the 1st respondent/
plaintiff by name late Rathinammal had not claimed any share
in the suit property subsequent to 18.03.1944 when the deceased
mother of Rathinammal died till 1962 when Rathinammal died,
can the legal heirs of late Rathinammal claim right of share in
the suit property after a lapse of 60 years in the year 2005 filing
a suit for partition?
b. Whether the claim of the 1 st respondent/plaintiff
for partition with respect to the suit property after a lapse of
43 years since 1962 when late Rathinammal, the deceased
mother of the 1st respondent/plaintiff died, is barred by the
provisions of Section 27 r/w Article 65 of the Limitation
Act?”
5. The learned counsel for the appellants though raised the substantial
question of law on the issue of limitation would restrict his argument with
regard to the identity of the property and as to whether the property is available
for partition or not. According to him, as per the decree passed in O.S.No.756
of 1963 dated 19.12.1964 on the file of the District Munsif Court, Poonamallee,
S.No.110/5 measuring an extent of 28 cents is described as 3rd item of 'A'
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Schedule property. That property as described is not the suit property and
therefore, that is not liable for partition and then, the suit itself is not
maintainable.
6. I have given my anxious consideration to the materials placed before
this Court. Admittedly, in the reply notice dated 13.10.2004 to the legal notice
issued by the plaintiff dated 30.09.2004, it is stated that the property measuring
an extent of 28 cents in S.No.110/5, which is now the suit property absolutely
belongs to the mother of 12th defendant namely Kuppammal. In the written
statement as well as the evidence, it is admitted that the suit property as
described is the 'B' Schedule property in O.S.No.756 of 1963. In that event,
after having contested the case on merits and suffered a decree, the appellants
cannot now turn around and take a technical plea that the description of the
property is not correct. In the considered opinion of this Court, there is no
discrepancy in the identification of the property. It is the admitted case of the
defendants that the suit property is very much available and it belongs to them
exclusively. Since the Courts have concurrently found that the plaintiff is also
entitled to a share, I do not find any reason to interfere with the same.
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7. Further, this Court is of the considered opinion that the question as
to whether paimash number 996 correlates to S.No.110/5 or not?, or in other
words, as to whether Survey Number 110/5 corresponds to paimash No.996 or
not? can be decided at the time of final decree proceedings. An Advocate
Commissioner can inspect and identify the property. As per the contention of
the learned counsel for the respondent, the property is still vacant land and is in
possession of the parties. In that event, there will not be any difficulty in
identifying the property as well as dividing it by metes and bounds. If at all, if
there is dispute over description of the property, obviously the so called
ostensible real owners namely, the legalheirs of Saranga Pillai and Chella Pillai
can file their objections before the Court. Therefore, as contended by the
learned counsel for the appellants that identity of the property is improper and
deficient is not required to be gone into at this point of time.
8. This appeal is against the preliminary decree passed in a suit for
partition. In a preliminary decree, only the rights of the parties has to be
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decided. Admittedly, the decree passed in O.S.No.756 of 1963 has become final
and binding on both the parties wherein, it is categorically declared that only
daughters of Venkatammal viz., Kuppammal and Rathnammal are entitled to
their shares in equal moiety. Therefore, unless it is pleaded and proved that the
said Rathnammal was excluded and ousted from her rights, the partition cannot
be denied by the appellants. Admittedly, by way of reply notice dated
13.10.2004, the appellants have denied the title and the suit was filed
immediately within one year. Therefore, the question of ouster or limitation will
not arise in the instant case.
9. In such circumstances, the findings of the Courts below that both the
branches are entitled to equal shares in the suit property, which is 'B' Schedule
property in O.S.No.756 of 1963 is absolutely correct and in order. Therefore,
the substantial questions of law raised by the appellants that Rathnammal and
her legalheirs are not entitled to claim partition and they lost their right as 60
years have gone by and the legalheirs of Kuppammal alone have absolute right
are answered against them. The judgment and decree passed in O.S.No.5456 of
2005 dated 20.12.2010 on the file of the VI Assistant Judge, City Civil Court,
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S.A.No.306 of 2016
Chennai as confirmed A.S.No.165 of 2011, dated 08.04.2015 on the file of the
XV Additional City Civil Court, Chennai, stand confirmed.
In the result, the Second Appeal stands dismissed. There shall be no
order as to costs. Consequently, connected Miscellaneous Petitions are closed.
28.10.2021
asi
Note: Issue order copy on or before 07.02.2022
To
1. The XV Additional City Civil Court, Chennai.
2. The VI Assistant Judge, City Civil Court, Chennai.
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S.A.No.306 of 2016
M. GOVINDARAJ, J.
asi
S.A.No.306 of 2016 and
C.M.P.Nos.9577 of 2018, 5462 of 2020
and 13020 of 2021
28.10.2021
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