Madras High Court
T.Siva vs B.Kasthuri on 24 February, 2022
SA.No.133/2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
SA.No.133/2022 & CMP.No.2780/2022
1.T.Siva
2.T.Saravanan .. Appellants /
Defendants 2 & 3
Vs.
1.B.Kasthuri
2.T.Kokilabai .. Respondents
/ Plaintiffs
Prayer:- Second Appeal preferred under 100 of CPC against the judgment
and decree dated 05.07.2018 on the file of the learned Additional District
Judge [Fast Track Court], Villupuram in AS.No.30/2014 thereby confirming
the judgment and decree dated 10.12.2013 on the file of the learned
Subordinate Judge, Gingee in OS.No.62/2010.
For Appellants : Mr.S.Manivasagam
For Respondents : Mr.C.Munusamy
https://www.mhc.tn.gov.in/judis 1
SA.No.133/2022
JUDGMENT
(1) The defendants 2 and 3 in the suit in OS.No.62/2010 are the
appellants in this Second Appeal.
(2) The respondents 1 and 2 in this appeal, as plaintiffs, filed the suit for
partition of their 2/5th share in all the suit properties. It is not in
dispute that the entire suit properties belonged to the first defendant.
Respondents 1 and 2/plaintiffs claimed that the suit properties are
ancestral properties and that the 1st wife of the 1st defendant died in
the year 1974 and the 1st defendant married their mother in the year
1975. Since the properties are joint family properties and the
plaintiffs are the legitimate children of the 1st defendant, the suit was
filed for partition of plaintiffs' 2/5th share in all the suit properties.
(3) It appears that the 1st defendant did not file any written statement
refuting the allegations or contested the suit. However the appellants
herein/defendants 2 and 3 filed a written statement disputing the
second marriage of the 1st defendant with the mother of the
SA.No.133/2022
plaintiffs/respondents 1 and 2 herein. The appellants not only
questioned the legitimacy of the plaintiffs, but also contented that
their mother Kasthuribai had two other sons and they died. Stating
that their mother had inherited 2/5th share of her deceased sons, the
appellants contended that the suit for partition claiming 2/5th share is
not maintainable. Referring to some mortgage debts, the appellants
further contended that defendants 1 to 3 alone are entitled to the suit
properties. Referring to a Sale Deed dated 13.10.2010 executed by
the 1st defendant in favour of plaintiffs, it is contended that the said
document is hit by lis pendens, invalid and not binding on the
appellants.
(4) The Trial Court decreed the suit granting 2/5th share in favour of the
plaintiffs in all the suit properties. Aggrieved by the judgment and
decree of the Trial Court the appellants herein preferred an appeal in
AS.No.30/2014 before the learned Additional District Judge (Fast
Track Court), Villupuram, and the Lower Appellate Court also
concurred with the findings of the Trial Court and dismissed the
appeal. Aggrieved by the judgment and decree of the Lower
SA.No.133/2022
Appellate Court confirming the judgment and decree of the Trial
Court, the above second Appeal is preferred.
(5) The learned counsel appearing for the appellants submitted that the
properties are not joint family properties and that the plaintiffs are
not entitled to 2/5th share in all the suit properties. It is seen that the
Trial Court and the Lower Appellate Court found that there is no
issue regarding the character of properties that the suit properties are
the ancestral properties of the 1st defendant. The Courts below also
found that the plaintiffs 1 and 2 are the legitimate children of the 1st
defendant through the second wife. The marriage after the death of
1st wife was also held to be proved. Therefore, the Courts below
concurrently held that the plaintiffs are entitled to 2/5th share. There
is no dispute in this case regarding the relationship between the
parties. While plaintiffs 1 and 2 being the children through the 2nd
wife, contracted by the 1st defendant after the death of his 1st wife by
name Kasthuribai, defendants 2 and 3 are the children of the 1st
defendant through 1st wife by name Kasthuribai. The only point that
was focused and canvassed much by the appellants before the Lower
SA.No.133/2022
Appellate Court is that the 1st wife of the 1st defendant namely the
mother of the appellants herein is entitled to 2/5th share as two of her
sons died long back.
(6) It is contented that the mother of the appellants/defendants 2 and 3
gave birth to four children namely Darasingh, Mannusingh, Siva and
Saravanan. Since two of the male children of Kasthuribai
predeceased her, it is contended that the mother Kasthuribai is
entitled to the share of the deceased sons.
(7) It is to be noted that the birth and death details of the two sons
allegedly begotten by Kasthuribai, are not given. No birth or death
certificate of such brothers is produced. Therefore, the Courts below
rendered a finding that the appellants/defendants 2 and 3 not even
stated the exact dates of birth or death of such deceased children of
Kasthuribai. The Courts below have rendered specific finding that
the appellants have not proved their case regarding the birth of two
other male children to 1st defendant. Though it is stated that one of
the sons died when he was 10 years old and another son died when
he was 7 years old, defendants 2 and 3 cannot claim enlargement of
SA.No.133/2022
their shares unless there is a positive proof to show that the mother
Kasthuribai had two more sons and she survived her two male
children. In the absence of any specific pleading as regards the birth
or death of the deceased children of Kasthuribai, this Court is unable
to countenance the arguments advanced by the learned counsel for
the appellants. The Courts below have granted the decree in favour
of the plaintiffs on the basis of the facts admitted and proved. Both
the Courts have ignored the document which came into existence
during the pendency of the suit at the instance of the 1st defendant.
Therefore, this Court is unable to find any merit by referring to such
document. Though some mortgage debts are referred to in the
written statement, the existence of debts and their binding character
are not proved by any document or evidence.
(8) Having regard to the concurrent findings of facts by the Courts
below, this Court is unable to find merits or substance in the
substantial questions of law raised in the Memorandum of Grounds.
(9) Hence, the Second Appeal is dismissed confirming the judgment
and decree dated 05.07.2018 made in AS.No.30/2014 passed by the
SA.No.133/2022
learned Additional District Judge [Fast Track Court], Villupuram,
thereby confirming the judgment and decree dated 10.12.2013 made
in OS.No.62/2010 passed by the learned Subordinate Judge, Gingee.
It is also open to the plaintiffs/respondents to seek enlargement of
share on the death of the 1st defendant. Considering the fact that
parties are relatives, there shall be no order as to cost.
Consequently, connected miscellaneous petition is closed.
24.02.2022
AP
Internet : Yes
To
1.The Subordinate Judge
Gingee.
2.The Additional District Judge [Fast Track Court],
Villupuram,
3.The Section Officer
VR Section, High Court
Chennai.
S.S.SUNDAR, J.,
SA.No.133/2022
AP
SA.No.133/2022
24.02.2022
https://www.mhc.tn.gov.in/judis 8
