Srinivasan vs Chandra
2022 Latest Caselaw 7426 Mad

                                                                              S.A.No. 293 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 08.04.2022

                                                        CORAM:
                                   THE HONOURABLE Mr. JUSTICE S.S.SUNDAR
                                                 S.A. No.293 of 2022
                                             and C.M.P. No.6198 of 2022


                  Srinivasan                                                         .. Appellant

                                                            Vs.

                  1. Chandra
                  2. Nagaraj
                  3. Banu
                  4. Krishnaveni                                                   .. Respondents


                            Second Appeal is filed under Section 100 of Civil Procedure Code,

                  1908, against the judgment and decree dated 22.08.2019 passed by the

                  Subordinate Judge, Ponneri, in A.S. No.19 of 2015 confirming the judgment

                  and decree dated 10.01.2014 passed by the District Munsif, Tiruvottiyur in

                  O.S. No.293 of 2007.



                                    For Appellant           : Mr. O.Padmaprakash




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

                  1/10
                                                                                    S.A.No. 293 of 2022

                                                      JUDGMENT

The unsuccessful first defendant in the suit in O.S. No.293 of 2007 on

the file of District Munsif Court, Tiruvottiyur, is the appellant in the above

second appeal. The first respondent in this appeal as plaintiff filed the suit in

O.S. No.293 of 2007 for partition of her 1/5th share in the suit property. The

suit property is described as an extent of 41 ares comprised in three survey

numbers i.e. S.No.155/1B2 measuring an extent of 0.26.0 Ares,

S.No.168/2A2 measuring 0.07.0 Ares and S.No.168/2A4 measuring an

extent of 0.08.0 Ares at Mathur Village, Ambathur Taluk, Tiruvallur

District.

2. The case of the first respondent in the plaint is that the suit property

absolutely belonged to her father by name Elumalai and that the said

Elumalai died on 12.01.2005 leaving behind the plaintiff and other

defendants as his legal heirs. Stating that the suit property was not divided

among the legal heirs of Elumalai, the plaintiff, as the daughter of Elumalai,

claim 1/5th share in the suit property. Since there was exchange of notices

before the suit, the plaintiff made specific averment in the plaint that she

denies the contention of defendants 1 and 2 in the reply notice that there was

a family arrangement and that as per the family arrangement, the plaintiff

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

S.A.No. 293 of 2022

and defendants 3 and 4 were given some property and that therefore, they are

not entitled to any right in the suit property.

3. The suit was contested by the second defendant by filing a written

statement. It is not disputed in the written statement that the suit property

belonged to Elumalai, the father of plaintiff and defendants. However, it is

specifically stated in the written statement that during the lifetime of

Elumalai, he settled 7 ½ cents of land in S.No.107/1 in Periamathur Village,

in favour of plaintiff and third defendant in the suit. It is further contended

that a house site was also settled in favour of fourth defendant. Since

substantial portions of the ancestral properties of Elumalai had already been

settled in favour of plaintiff and defendants 3 & 4 by way of a registered

settlement deed, it is contended by the second defendant that the plaintiff

had no right to seek partition. As regards Items 2 and 3 of suit schedule

property, it is stated that acquisition proceedings have been initiated for

acquiring the lands and that the matter is pending under reference under

Section 18 of the Land Acquisition Act. The second defendant also

contended that the suit is bad for non-joinder of necessary parties and that

the plaintiff is not in joint possession of the property and therefore, she has

to pay Court fee under Section 37(2) of Tamil Nadu Suits Valuation and https://www.mhc.tn.gov.in/judis

S.A.No. 293 of 2022

Court fees Act.

4. Before the trial Court, the plaintiff examined herself as P.W.1 and

marked Ex.A1 and A2. The second defendant was examined as D.W.1 and

the fourth defendant was examined as D.W.2 and Exs.B1 to B5 were

marked. Before the trial Court, the appellant remained ex parte. On behalf of

defendants, it was contended that the plaintiff and defendants 3 and 4 were

given in marriage before 1984 and that therefore they are not entitled to any

share in the ancestral property of their father. The trial Court accepted the

case of second defendant and held that the plaintiff is entitled to 1/15 th share

and not 1/5 share in respect of suit first item. Regarding suit items 2 and 3,

the suit was dismissed holding that the lands in items 2 and 3 have been

acquired and L.A.O.P. is pending for compensation. Though the plaintiff is

entitled to a share in the compensation, the trial Court did not give any

observation.

5. Aggrieved by the findings of the trial Court, the appellant filed an

appeal in A.S. No.18 of 2015 before the Sub-Court, Ponneri. Before the

lower appellate Court, the appellant contended that the appellant was set ex

parte intentionally by suppressing the correct address. It was further https://www.mhc.tn.gov.in/judis

S.A.No. 293 of 2022

contended that no summons was served on the appellant before the trial

Court. The main argument of the appellant before the lower appellate Court

was that the appellant who was set ex parte before the trial Court should be

given an opportunity to adduce further evidence in the interest of justice.

The lower appellate Court, giving sufficient reasons, held that there is no

scope for remitting the matter merely because the appellant was set ex parte

and there is no sufficient reasons for remanding the case to the trial Court.

The lower appellate Court also concurred with the findings of fact that the

suit properties are the ancestral properties of their father and that the

findings of the trial Court are not vitiated and there is no legal infirmities in

the findings of the trial Court. The issue whether there was a family

arrangement made and whether the father had settled some of the properties

in favour of plaintiff, and other daughter was also considered by the lower

appellate Court. The lower appellate Court held against the defendants as no

document is produced before the trial Court.

6. Aggrieved by the concurrent findings of the Courts below, the

above second appeal is preferred by the first defendant in the suit by raising

the following substantial question of law in the memorandum of grounds of

the appeal:

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

S.A.No. 293 of 2022

“ a. Whether the lower appellate Court was right in disposing of the appeal without taking into consideration the petition under Order 41 Rule 27 filed by the appellant ?

b. Whether the lower appellate Court was right in holding that the appellant failed to state the reasons as to why he remained exparte when it is clear from the records that a wrong address of the appellant was given in the plaint ?

c. Whether the lower appellate Court was right in holding that raising new grounds by the appellant who remained exparte is deprecated ?

d. Whether the lower appellate Court was right in holding that the appellant dos not deserve the relief of remanding back the case when he filed additional documents which the second defendant failed to file to prove his contention ?”

7. Learned counsel appearing for the appellant submitted that the

appellant has lost his valuable opportunity to contest the case on merits and

the lower appellate Court also rejected his application filed under Order 41

Rule 27 C.P.C. for reception of additional documents. Learned counsel

further submitted that the lower appellate Court ought to have remitted the

matter as the appellant did not receive any summons before the trial Court

and that grave injustice is done to the appellant. The main argument focused

by the learned counsel for the appellant is that the appellant did not have a

fair opportunity before the trial Court and that the appellant was not given an https://www.mhc.tn.gov.in/judis

S.A.No. 293 of 2022

opportunity before the lower appellate Court to adduce additional documents

since he remained ex parte but due to the act of respondent / plaintiff by

giving false or wrong address.

8. First of all, this Court is unable to agree with the submissions of

learned counsel for the appellant that the plaintiff intentionally gave wrong

address of appellant and therefore no summons was issued to the appellant.

The appellant and the second defendant are brothers. It is admitted in the

course of evidence that defendants 1 and 2 are residing jointly in the same

home after the death of father. It is to be noted that the counsel for the

appellant wanted to reiterate the submissions of the second defendant before

the lower Court in the written statement. No additional ground beyond what

has been stated by the second defendant in the written statement is brought

to the notice of this Court. When the appellant was set ex parte he has two

options available as against the judgment setting his ex parte. He was

entitled to file an application under Order 9 Rule 13 C.P.C. to set aside the

ex parte decree if he really wants to participate in the proceedings and to get

an opportunity to lead evidence on his behalf. Having chosen to file a

regular appeal, the appellant cannot contend before this Court that he had no

opportunity to mark further documents.

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

S.A.No. 293 of 2022

9. Learned counsel for the appellant relied upon the affidavit filed by

the appellant before the lower appellate Court for reception of additional

documents under Order 41 Rule 27 C.P.C. The appellant and his brother, the

second defendant, have common cause and this Court is unable to see how

and why the second defendant namely the brother of appellant did not file

the documents. Assuming that the father had settled the properties in favour

of plaintiff and defendants 3 and 4, it does not dis-entitle them from

claiming partition after the death of father in respect of the properties which

are left by the father. In the present case, the share that was allotted to the

plaintiff is only 1/15 even though the plaintiff is entitled to 1/5th share in

view of the amendment in 2005, particularly as per the interpretation of

Section 6 of Hindu Succession Act, by the Hon'ble Supreme Court recently.

10. Since it is stated that Items 2 and 3 of suit schedule property were

acquired long back by Government, the plaintiff is not granted a decree in

respect of 2 items of Suit schedule property. It is to be noted that the defense

in the written statement that items 2 and 3 of the suit schedule property are

not available as land acquisition proceedings are pending. It is admitted by

the second defendant in the written statement that the matter is under

reference under Section 18 of the Land Acquisition Act. Both the Courts https://www.mhc.tn.gov.in/judis

S.A.No. 293 of 2022

below dismissed the suit in respect of Items 2 and 3 of the suit property even

though the plaintiff is entitled to the proportionate share in the compensation

that may be ultimately awarded pursuant to the reference under Section 18 of

Land Acquisition Act. However, no appeal is preferred by the plaintiff as

against the judgment and decree of the trial Court in respect item No.2 and 3

of the suit schedule property. Already substantial injustice is done to the

plaintiff by reducing the share from 1/5 to 1/15 and denying share to the

plaintiff in respect of Items 2 and 3 of the suit schedule property. Therefore,

this Court is unable to find any equity in favour of the appellant. In view of

the factual findings and the conclusions reached above, this Court is unable

to find any substance in the substantial questions of law.

11. In fine, the Second Appeal is dismissed. Consequently, connected

miscellaneous petition is closed.

08.04.2022

bkn Index: Yes / No Speaking order / Non-speaking order

To:

1. The Subordinate Judge, Ponneri.

2. The District Munsif, Tiruvottiyur.

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

S.A.No. 293 of 2022

S.S.SUNDAR, J.,

bkn

S.A. No.293 of 2022

08.04.2022

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