Madras High Court

Velayudhan Nair (Died) vs Krishnakumari on 8 September, 2021

                                                                        S.A.(MD)Nos.100, 118 and 119 of 2012


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   DATED : 08.09.2021

                                                        CORAM

                            THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                        S.A.(MD)Nos.100, 118 and 119 of 2012

                S.A.(MD)No.100 of 2012:-
                1.Velayudhan Nair (Died)
                2.Lalithambika
                3.V.L.Aasa
                4.V.L.Maya                                                    ... Appellants
                (Appellants 3 and 4 are brought on record as LRs
                of the deceased 1st appellant vide order dated
                03.08.2021 made in C.M.P.(MD)Nos.10049 and
                10050 of 2019 and C.M.P.(MD)No.5714 of 2021
                in S.A.(MD)Nos.100, 118 and 119 of 2012 by
                GRSJ)
                                                     Vs.
                Krishnakumari                                                 ... Respondent

Prayer : Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 19.07.2011 of the learned District Judge, Kanyakumari at Nagercoil made in A.S.No.48 of 2009, partly reversing the judgment and decree dated 09.10.2009 of the learned Subordinate Judge, Padmanabhapuram made in O.S.No.67 of 2007.

For Appellants : Mr.C.Dhanaseelan

For Respondent : Mr.V.M.Balamohan Thambi

https://www.mhc.tn.gov.in/judis

S.A.(MD)Nos.100, 118 and 119 of 2012

S.A.(MD)No.118 of 2021:-

                G.Krishnakumari                                          ... Appellant
                                                        Vs.
                1.Velayudhan Nair (Died)
                2.Lalithambika
                3.V.L.Aasa
                4.V.L.Maya                                               ... Respondents

(Respondent 3 and 4 are brought on record as LRs of the deceased 1st respondent vide order dated 03.08.2021 made in C.M.P.(MD)Nos.10049 and 10050 of 2019 and C.M.P.(MD)No.5714 of 2021 in S.A.(MD)Nos.100, 118 and 119 of 2012 by GRSJ)

Prayer : Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree in A.S.No.48 of 2009 dated 19.07.2011 on the file of learned District Court, Kanyakumari at Nagercoil, partly confirming the judgment and decree in O.S.No.67 of 2007, dated 09.10.2009 on the file of the learned Subordinate Court, Padmanabhapuram.

For Appellant : Mr.V.M.Balamohan Thambi

For Respondents : Mr.C.Dhanaseelan

S.A.(MD)No.119 of 2021:-

                G.Krishnakumari Amma                                     ... Appellant
                                                        Vs.
                1.Velayudhan Nair (Died)
                2.Lalithambika

https://www.mhc.tn.gov.in/judis

                                                                   S.A.(MD)Nos.100, 118 and 119 of 2012


                3.V.L.Aasa
                4.V.L.Maya                                               ... Respondents

Prayer : Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree in A.S.No.47 of 2009 dated 19.07.2011 on the file of learned District Judge, Kanyakumari at Nagercoil, partly reversing the judgment and decree in O.S.No.136 of 2005, dated 09.10.2009 on the file of the learned Subordinate Court, Padmanabhapuram.

For Appellant : Mr.V.M.Balamohan Thambi

For Respondents : Mr.C.Dhanaseelan

COMMON JUDGEMENT

Krishnakumari Amma and Velayudhan Nair were the children of late

Chellappan Pillai. Chellappan Pillai owned 14 cents of land in

R.S.No.P1-29/23, Colachel Village vide gift deed dated 05.08.1971 (Ex.A1 and

Ex.A2 is the Tamil translation). Chellappan Pillai gifted the northern seven

cents together with building thereon in favour of Krishnakumari Amma. Ex.A1

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S.A.(MD)Nos.100, 118 and 119 of 2012

contained two restrictive conditions. Chellappan Pillai retained his right of

residence in the building together his wife/Gowrikutti Amma till their life time.

It was further stipulated that the gifted portion should not be alienated to a

stranger and that it can be sold only to the southern side owner. During the

relevant time, the southern portion was owned by Chellappan Pillai himself.

2.Later Chellappan Pillai executed a Will dated 04.11.1985 (Ex.A3) in

favour of his four sons and another daughter. Under the terms of the said Will,

the southern portion was allotted to Velayudhan Nair. Chellappan Pillai passed

away on 15.08.1986. Gowrikutti Amma passed away on 01.11.1996. In the

northern portion, Krishnakumari Amma was residing with her husband. The

southern portion was in the possession of Velayudhan Nair.

3.Krishnakumari Amma wanted to put up a wall on the southern side.

Since her brother, Velayudhan Nair declined to grant permission, she issued suit

notice dated 28.06.2004 (Ex.A5). Velayudhan Nair sent a reply dated

06.07.2004 (Ex.A6). Krishnakumari Amma filed O.S.No.198 of 2004 on the

file of the District Munsif Court, Eraniel, seeking the relief of demarcation and

permanent injunction. Velayudhan Nair filed O.S.No.136 of 2005 before the

Sub Court, Padmanathapuram for declaring his pre-emption right to purchase

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S.A.(MD)Nos.100, 118 and 119 of 2012

the northern portion. He also sought permanent injunction to restrain

Krishnakumari Amma from alienating the property to any third party in

violation of the pre-emption clause set out in Ex.A1/gift deed dated 05.08.1971.

The suit filed by Krishnakumari Amma was transferred to Sub Court,

Padmanathapuram and renumbered as O.S.No.67 of 2007. Both the suits were

tried together. During the pendency of the suit, Lalithaambaika Amma, wife of

Velayudhan Nair was impleaded as co-plaintiff in O.S.No.136 of 2005

4.Velayudhan Nair examined himself as P.W.1 and marked Exs.A1 to

A14. Krishnakumari Amma examined herself as D.W.1 and marked Exs.B1 to

B6. An advocate commissioner was appointed and his reports and plans were

marked as Exs.C1 and C2.

5.After considering the evidence on record, the trial Court by judgment

and decree dated 09.10.2009 dismissed both the suits. Aggrieved by the same,

Velayudhan Nair and Lalithaambaika Amma filed A.S.No.47 of 2009 before the

District Court, Kanyakumari at Nagercoil. Krishnakumari Amma filed

A.S.No.48 of 2009 before the very same Court. Both the appeals heard

together. The first appellate Court by the impugned judgment and decree dated

19.07.2011 partly allowed both the appeals. A.S.No.47 of 2009 was partly

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S.A.(MD)Nos.100, 118 and 119 of 2012

allowed and the suit was partly decreed in respect of the relief of declaration of

pre-emption right. However, the first appellate Court confirmed the denial of

the relief of permanent injunction. A.S.No.48 of 2009 was also partly allowed.

While the decree for demarcation was given, the denial of the relief of

permanent injunction was confirmed. Aggrieved by the same, these three

second appeals have been filed by the respective parties.

6.These second appeals were admitted on the following substantial

question of law:-

“(a) Whether the first appellate Court is right in granting the decree for pre-emption is correct in the absence of sale or any transaction between stranger to the family?

(b) Whether the first appellate Court is right in giving a finding that Ex.B1 is Will when the respondent himself has admitted that Ex.B1 as gift in his pleadings and evidence? and

(c) Whether the first appellate Court is right in refusing the relief of permanent injunction when admittedly the respondent herein is residing nearby the suit building and has not denied the case pleaded by appellant in the plaint?”

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S.A.(MD)Nos.100, 118 and 119 of 2012

7.Heard the learned counsel on either side.

8.I am genuinely of the view that this is a case of “much ado about

nothing”. During the pendency of these second appeals, Velayudhan Nair had

passed away. His wife is already on record and his children have also been

brought on record. The northern portion of the suit property measuring 7 cents

together with building was gifted to Krishnakumari Amma. She is therefore

entitled to have the gifted property demarcated so that she can put up a wall on

the southern side enclosing the same. The first appellate Court rightly granted

the relief of demarcation and the same is confirmed. But in the gift deed

executed in her favour vide Ex.A1, her father/Chellappan Pillai had

categorically stipulated that the northern portion should not be sold in favour a

stranger and that it should be sold only to the southern portion owner. At

present, the southern portion is owned by the legal heirs of Velayudhan Nair,

who was none other than the brother of Krishnakumari Amma. Though the

learned counsel for the appellant would invoke Section 10 of the Transfer of

Property Act to contend that such a restraint imposed on her is void, I am not

persuaded to accept the said contention. As rightly pointed out by the learned

counsel appearing for the legal representatives of Velayudhan Nair, it is only a

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S.A.(MD)Nos.100, 118 and 119 of 2012

partial restraint and therefore, the first appellate Court granted the relief of

declaration. The same is also confirmed. Krishnakumari had categorically

stated that she had no intention to alienate the suit property in favour of any

third party. Since the pre-emption right has already been declared in favour the

legal representatives of Velayudhan Nair, granting of injunction can only be a

matter of course. Krishnakumari Amma cannot really have any grievance about

the grant of injunction. Likewise, she is entitled to injunction against the legal

representatives of Velayudhan Nair for putting up the southern wall.

9.The second appeals are allowed accordingly. No costs.




                                                                                    08.09.2021
                Index             : Yes / No
                Internet          : Yes/ No
                ias

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.

https://www.mhc.tn.gov.in/judis

S.A.(MD)Nos.100, 118 and 119 of 2012

To:

1.The District Court, Kanyakumari, At Nagercoil.

2.The Sub Court, Padmanabhapuram.

Copy to:

The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis

S.A.(MD)Nos.100, 118 and 119 of 2012

G.R.SWAMINATHAN, J.

ias

S.A.(MD)Nos.100, 118 and 119 of 2012