Madras High Court
Renganayagi vs N.Kandasamy on 21 April, 2022
S.A.Nos. 77 & 655 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.04.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
S.A.Nos. 77 and 655 of 2012
and
M.P.No. 1 of 2012
S.A.No.77 of 2012
Renganayagi .... Appellant
Vs
1. N.Kandasamy
2. Muthuraj
3. N. Ramasamy
4. N.Vaidyanathan
5. Nagarathinam
6. N.Evernamba
7. Kasthuri
8. V. Banumathi .... Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C., to set aside
the Judgment and Decree dated 31.10.2011 in A.S.No.53 of 2009 on the
file of the Principal Subordinate Court, Mayiladuthurai and reversing the
Judgment and Decree dated 30.04.2009 in O.S.No.89 of 2002 on the file
of the District Munsif Court, Sirkali.
For Appellant : Mr.V.V.Sathya
For Respondents : R1, R4 to R8 – No Appearance
Mr.K.Muthukumarasamy for R2
https://www.mhc.tn.gov.in/judis
S.A.Nos. 77 & 655 of 2012
S.A.No.655 of 2012
K. Muthuraj .... Appellant
Vs
1. N.Kandasamy
2. Renganayagi
3. N. Ramasamy
4. N.Vaidyanathan
5. Nagarathinam
6. N.Evernamba
7. Kasthuri
8. V. Banumathi .... Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C., to set aside
the Judgment and Decree dated 31.10.2011 in A.S.No.53 of 2009 on the
file of the Principal Subordinate Court, Mayiladuthurai and reversing the
Judgment and Decree dated 30.04.2009 in O.S.No.89 of 2002 on the file
of the District Munsif Court, Sirkali.
For Appellant : Mr. K.Muthukumarasamy
For Respondents : R1, R4 to R8 – No Appearance
Mr.V.V.Sathya for R2
COMMON JUDGMENT
The issue involved in both the second appeals are common and
hence they are taken up together, heard and disposed of through this
common Judgment.
2. The appellant in S.A.No.77 of 2012 was the plaintiff in the suit
and the appellant in S.A.No.655 of 2012 was the second defendant in the
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S.A.Nos. 77 & 655 of 2012
suit. The second defendant sailed along with the plaintiff and both of
them are claiming 1/3rd share in the suit property.
3. The case of the plaintiff is that the suit property originally
belonged to one Neelayadakshi, wife of Subramanian Chettiar by means
of a registered settlement deed dated 22.07.1959, marked as Ex.A1.
This settlement deed was executed in her favour by her brother
Thangavel Chettiar. The specific case that was pleaded in the plaint
was that her son Ganapathy pre-deceased her. Her husband also
pre-deceased her. She died intestate and the plaintiff along with the
defendants 1 and 2 were claiming 1/3rd share under Section 15(i)(d) and
(e) of the Hindu Succession Act, 1956.
4. The plaintiff issued a notice to the first defendant on
13.03.1998, marked as Ex.A2, calling upon him to allot her 1/3 rd share in
the suit property. On receipt of the said notice, the first defendant also
issued a reply notice on 07.04.1998, marked as Ex.A3. Since, the first
defendant was not coming forward to allot the share of the plaintiff, the
suit came to be filed seeking for the relief of partition and allotment of
1/3rd share in the suit property.
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S.A.Nos. 77 & 655 of 2012
5. During the pendency of the suit, the first defendant died on
13.07.2004 and his legal representatives were brought on record as
defendants 3 to 9. The plaintiff also came to know the fact that the first
defendant had executed a sale deed in favour of the fourth defendant,
marked as Ex.B1. Hence, necessary averments were made in the plaint
when the amendment was carried out and the plaintiff took a stand that
the sale made in favour of the fourth defendant is not binding on the
plaintiff.
6. The first defendant filed a written statement. The only stand
taken by the first defendant was that the suit property is in possession
and enjoyment for more than 50 years and he had developed the suit
property by spending substantial amounts. Therefore, according to the
first defendant, he had perfected his title in the suit property and the suit
itself has been filed with an exorbitant delay. Accordingly, the first
defendant sought for the dismissal of the suit.
7. The fourth defendant also filed an additional written statement
and toed the line of the first defendant.
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S.A.Nos. 77 & 655 of 2012
8. The Trial Court, on considering the facts and circumstances of
the case and on appreciation of oral and documentary evidence, came to a
conclusion that the plaintiff is entitled for 1/3rd share in the suit property
along with the first and second defendants. A preliminary decree was
passed to this effect that on 30.04.2009. Aggrieved by the same, the
fourth defendant filed an appeal in A.S.No.53 of 2009 before the
Principal Subordinate Court, Mayiladuthurai. The lower Appellate
Court, through Judgment and Decree dated 31.10.2011, allowed the
appeal and thereby the Judgment and Decree of the Trial Court was set
aside and consequently the suit was dismissed. Aggrieved by the same,
the plaintiff and the second defendant have filed these second appeals.
9. Since the second appeal revolves around a very short issue,
the substantial question of law was framed in the course of arguments as
follows :
a) The plaintiff specifically pleaded that the son of
Neelayadakshi pre-deceased her and this fact was not denied
by the first defendant and the fourth defendant in the written
statement and no issue was framed in this regard. While so,
whether the lower Appellate Court was right in taking up
this issue even without framing it as a point for
consideration under Order 41 Rule 31 of CPC by relying
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S.A.Nos. 77 & 655 of 2012
upon Ex.B2- proceedings in which neither the plaintiff nor
the second defendant were parties ?
b) Whether the lower Appellate Court was right in
reversing the Judgment of the Trial Court on an issue which
was not even putforth before the Trial Court by the first and
fourth defendants ?
10. Heard, Mr.V.V.Sathya, learned counsel for the appellant in
S.A.No.77 of 2012 and Mr.K.Muthukumarasamy, learned counsel for the
appellant in S.A.No.655 of 2012.
11. The first respondent/fourth defendant is represented through
a counsel and the name of the first respondent is also printed in the cause
list. The first respondent is the only contesting respondent in this case
since, it is only based on the appeal filed by him, the Judgment and
Decree of the Trial Court was reversed.
12. The plaintiff had approached the Court with a specific
pleading that Neelayadakshi was the owner of the property and both her
son and her husband pre-deceased her and by virtue of the same, the
plaintiff, first defendant and the second defendant are entitled to inherit
the property under Section 15(i)(d) and (e) of the Hindu Succession Act,
1956. Neither the first defendant nor the fourth defendant denied the
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S.A.Nos. 77 & 655 of 2012
fact that the son of Neelayadakshi pre-deceased her. In view of the
same, there was no occasion for the Trial Court to frame an issue in this
regard since an issue can be framed under Order 14 Rule 1 of CPC only
if a material fact is affirmed by one party and it is denied by the other.
Since, there was no denial of the material fact it must be taken to have
been admitted by the defendants in accordance with Order 8 Rule 3 of
CPC.
13. The Trial Court, after discussing the entire facts of the case,
came to a conclusion that the plaintiff, first defendant and the second
defendant are entitled to 1/3rd share in the suit property since they were
considered to be the heirs of the father and mother under Section 15(i)(d)
and (e) of the Hindu Succession Act, 1956.
14. The lower Appellate Court was expected to frame points for
consideration under Order 41 Rule 31 of CPC. The compliance of this
provision has been held to be mandatory by the Hon'ble Supreme Court
of India in a catena decisions. However, the only point for
determination that was framed by the lower Appellate Court is extracted
hereunder :-
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S.A.Nos. 77 & 655 of 2012
““7/ jPh;t[f;Fhpa gpur;rid
fPHik ePjpkd;wj; jPh;g;g[ kw;Wk;
jPh;g;ghiz uj;J bra;ag;gl;L. ,k;nky;KiwaPL mDkjpf;fg;gl
ntz;Lkh? vd;gnj jPh;t[f;Fhpa Kf;fpag; gpur;ridahFk;/”
15. The lower Appellate Court straight away takes into
consideration Ex.B2 which was the suit filed in O.S.No.87 of 2004 by the
third defendant, wherein he seems to have taken a stand that the above
said Neelayadakshi died in the year 1962 and her son Ganapathy died in
the year 1964. Admittedly, neither the plaintiff nor the second defendant
were parties in the said suit and the lower Appellate Court completely
misdirected itself by relying upon Ex.B2. Consequently, the lower
Appellate Court proceeded to allow the appeal only on the ground that
the plaintiff failed to prove that Ganapathy pre-deceased his mother
Neelayadakshi.
16. The Appellate Court which is the last Court of facts, is
entitled to re-appreciate the oral and documentary evidence. If the
Appellate Court wishes to go deep into any of the facts, the parties must
be put on notice and if required, the Appellate Court is also entitled to
take additional evidence under Order 41 Rule 27 of CPC. Even before
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S.A.Nos. 77 & 655 of 2012
resorting to such a process, the lower Appellate Court is expected to
frame the points for determination and give reasoning as to why it wants
to take additional evidence and collect further evidence in the case.
Even while taking additional evidence, the Appellate Court is expected
to record evidence under Order 41 Rule 28 of CPC. All these safeguards
have been given under the Code of Civil Procedure only to ensure that
the parties are not taken by surprise and every one is put on notice before
any adverse findings are given against the concerned parties. The lower
Appellate Court has completely violated the procedure and has gone on a
tangent by giving a finding on an issue which was not even projected by
the parties to the proceedings. The second substantial question of law is
answered accordingly.
17. In fact the lower Appellate Court gave a finding on a fact
which was not denied either by the first defendant or the fourth
defendant. The lower Appellate Court ought not to have taken
cognizance of Ex.B2–proceedings in which the plaintiff and the second
defendant were not parties in those proceedings. The first substantial
question of law framed by this Court is answered accordingly.
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S.A.Nos. 77 & 655 of 2012
18. In view of the above discussion, this Court has absolutely no
hesitation to interfere with the Judgment and Decree of the lower
Appellate Court. The findings of the lower Appellate Court suffers from
perversity. The substantial questions of law framed by this Court are
answered in favour of the appellants.
19. In the result, both the second appeals are allowed and the
Judgment and Decree passed by the Principal Subordinate Judge,
Mayiladuthurai in A.S.No.53 of 2009, dated 31.10.2011, is hereby set
aside and the Judgment and Decree of the Trial Court is restored.
Consequently, connected Miscellaneous Petition is closed. Considering
the facts and circumstances of the case, there shall be no order as to
costs.
21.04.2022
Index :Yes/No
Internet :Yes/No
Lpp
To
1.The Principal Subordinate Judge, Mayiladuthurai
2.The District Munsif, Sirkali.
https://www.mhc.tn.gov.in/judis
S.A.Nos. 77 & 655 of 2012
N. ANAND VENKATESH, J.
Lpp
S.A.Nos. 77 and 655 of 2012
and
M.P.No. 1 of 2012
21.04.2022
https://www.mhc.tn.gov.in/judis
