Madras High Court
D.Chinna Katteshwari vs M.Perumal Nadalvar (Died) on 1 April, 2022
1 S.A.(MD)No.528 OF 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.04.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.528 of 2010
1. D.Chinna Katteshwari
2. N.Duraipandian ... Appellants / Appellants /
Defendants
Vs.
1. M.Perumal Nadalvar (Died)
2. K.Karuppusamy ... Respondents / Respondents /
Plaintiffs
3. Vallinayagam
4. Nattudurai
5. Thangaramu
6. Singaravel
(R-3 to R-6 were suo motu impleaded as LRs. of the
deceased 1st respondent vide Order dated 04.03.2022)
... Respondents 3 to 6
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree made in A.S.No.19 of
2008 by the learned Subordinate Judge, Palani, dated
10.12.2009, confirming the Judgment and Decree made in
O.S.No.461 of 2003 by the District Munsif, Palani, dated
19.12.2007.
https://www.mhc.tn.gov.in/judis
1/11
2 S.A.(MD)No.528 OF 2010
For Appellants : Mr.Veera Kathiravan,
Senior Counsel,
for Mr.A.Parthasarathy.
For R-2 to R-6 : Mr.M.P.Senthil
***
JUDGMENT
The defendants in O.S.No.461 of 2003 on the file of
the District Munsif Court, Palani, are the appellants in this
second appeal.
2. The suit was filed for declaration that the suit
properties belong to the plaintiffs and for recovery of
possession from the defendants. The defendants filed written
statement controverting the plaint averments. Based on the
divergent pleadings, the trial Court framed the following
issues:-
“ (1) Whether the plaintiff is entitled for the relief of
declaration and recovery of possession in respect of the suit
properties?
(2) Whether the plaintiff is entitled for mesne profits
as prayed for?
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(3) Whether the defendants have perfected title by
adverse possession in respect of the suit property?
(4) Whether the CF paid is correct or not?
(5) To what other relief? ”
The second plaintiff Perumal Nadalvar examined himself as
P.W.1 and one Senjikannan was examined as P.W.2. Ex.A.1 to
Ex.A.8 were marked. The second defendant examined himself
as D.W.1 and one Ramamurthy was examined as D.W.2 on the
side of the defendants. Ex.B.1 series were marked. After
consideration of the evidence on record, the trial Court by
judgment and decree dated 19.12.2007 decreed the suit as
prayed for. Aggrieved by the same, the defendants filed
A.S.No.19 of 2008 before the Sub Court, Palani. By the
impugned judgment and decree dated 10.12.2009, the first
Appellate Court confirmed the decision of the trial Court and
dismissed the first appeal. Challenging the same, this second
appeal came to be filed.
3. The second appeal was admitted on 29.03.2022 on
the following substantial questions of law:-
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(a) Whether the Courts below misapplied
Section 15 of the Hindu Succession Act?
(b) Whether the Courts below failed to
note that the plaintiffs have not adduced any
evidence to substantiate their claim on the 3rd item
of the suit properties?
(c) Whether the appellants had adduced
sufficient positive and acceptable evidence to
establish that they have perfected title by adverse
possession? ”
4. The learned Senior counsel appearing for the
appellants reiterated all the contentions set out in the
memorandum of grounds and called upon this Court to answer
the substantial questions of law in favour of the appellants and
set aside the impugned judgment and decree and dismiss the
suit in toto.
5. Per contra, the learned counsel appearing for the
respondents submitted that the impugned judgment and
decree do not call for any interference.
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6. I carefully considered the rival contentions and
went through the evidence on record.
7. The learned Senior counsel appearing for the
appellants initially contended that the original plaintiff failed
to establish her biological relationship with the owner of the
suit property. This contention cannot hold water because as
rightly pointed out by the learned counsel appearing for the
respondents, D.W.1 while in the witness-box had conceded her
status.
8. The facts are as follows:-
The suit items are three in number. The case of the
plaintiffs is that one Velammal was the original owner of the
property. Her husband Sadaiyappan @ Palanisamy Narangiyar
pre-deceased her. Velammal died in the year 1998. The
original plaintiff Vellaithai was none other than the sister of
Sadaiyappan @ Palanisamy Narangiyar. According to the
original plaintiff, the suit properties devolved on her. Since
the suit properties are in possession and enjoyment of the
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defendants, she was constrained to file the suit seeking the
relief of declaration and recovery of possession. During the
pendency of the suit, the first plaintiff passed away and other
two plaintiffs have come on record. The first defendant is the
niece of Velammal and the second defendant is the husband of
the first defendant. The defendants raised very many
contentions. The first contention they put forth was that even
during the lifetime of Velammal, they had trespassed into the
suit property and they were enjoying it adverse to her title and
that they had perfected her title by adverse possession. The
other contention put forth by them was that Velammal
purchased the suit properties with the Seedhana given by her
father and that therefore, the original plaintiff being the legal
heir of the husband of Velammal cannot have any claim. Yet
another contention put forth by the learned Senior counsel is
that the third item of the suit property never stood in the
name of Velammal and that it stood in the name of one
Karupayammal and that therefore, the plaintiffs cannot have
any claim.
https://www.mhc.tn.gov.in/judis
9. Let me take up the plea of adverse possession first.
A person putting forth the plea of adverse possession has to
establish the ingredients of adverse possession. In this case,
the defendants ought to have proved that even during the life
time of Velammal, they have been in hostile possession of the
property. Except a faint plea in the written statement, there is
absolutely no evidence adduced by the defendants. If even
during the life time of Velammal, the defendants had managed
to obtain patta for the property, they would definitely have
some evidence in support of their claim. The defendants had
marked only Ex.B.1 kist receipt for the property from fasli
1395. Ex.B.1 marked by the defendants is in the name of
Velammal. Therefore, there is no proof of adverse possession.
I therefore answer the third substantial question of law
against the appellants.
10. Even if I accept the contention of the learned
Senior counsel that the suit properties were purchased by
Velammal by utilising her seedhana, it would not make any
difference. Section 15 of The Hindu Succession Act sets out
the general rules of succession in the case of female Hindus.
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As per Section 15(1)(a) of the Act, it would devolve on the sons
and daughters including the children of any predeceased son
or daughter and husband. In this case, Velammal died
issueless. Her husband predeceased her. Therefore, Section
15(1)(a) of the Act will not apply. As per Section 15(1)(b) of
the Act, the property would devolve only upon the heirs of the
husband. It has been conceded by DW1 that Vellaithai was the
biological sister of Palanisamy Narangiyar. The learned Senior
counsel contends that Section 15(2)(1)(a) of the Act would
come into play. Section 15(2)(1)(a) of the Hindu Succession
Act is as follows:-
“15(2) Notwithstanding anything contained in
sub-section (1)
(a) any property inherited by a female Hindu from her
father or mother shall devolve, in the absence of any son or
daughter of the deceased (including the children of any
pre-deceased son or daughter) not upon the other heirs
referred in sub-section (1) in the order specified therein, but
upon the heirs of the father;”
Only if the property was inherited by a female Hindu from her
father or mother, it would devolve on the heirs of her father.
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In this case, there is nothing on record to show that the suit
items were inherited by Velammal from her father. Therefore,
Section 15(2)(1)(a) of the Act has no application. The Courts
below rightly applied Section 15(1)(b) of the Act and sustained
the plea of the plaintiffs. The first substantial question of law
is answered against the appellants.
11. The learned Senior counsel pointed out that the
suit third item as per Ex.A.2 stands in the name of one
Karuppayammal. The name of Velammal is mentioned, but one
Palanisamy is described as her husband. Velammal in the case
on hand was the wife of Sadaiyappan @ Palanisamy
Narangiyar. There is nothing on record to show that the suit
third item belonged to Velammal. It is true that in the written
statement there is no specific pleading in this regard. Yet the
plaintiffs have to affirmatively show that the suit property
belonged to Velammal, W/o.Sadaiyappan @ Palanisamy
Narangiyar. The evidence adduced by the plaintiffs in respect
of the suit third item is absolutely insufficient. The Courts
below omitted to correctly construe Ex.A.2 as regards the suit
third item. Therefore, the second substantial question of law is
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answered in favour of the appellants. The impugned judgment
and decree are modified and the relief of declaration and
recovery of possession granted to the plaintiffs is confined to
suit first and second item. The suit is dismissed as regards the
suit third item.
12. This second appeal is partly allowed. No costs.
01.04.2022
Index : Yes / No
Internet : Yes/ No
PMU
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,
Palani.
2. The District Munsif,
Palani.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.528 of 2010
01.04.2022
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
