Madras High Court
Jawahar vs Lakshmikantham on 5 July, 2022
S.A.No.403 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.07.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.403 of 2020
and
C.M.P.No.8112 of 2020
1.Jawahar
2.Kumar
... Plaintiffs/Appellants/Appellants
Vs.
1.Lakshmikantham
2.Kamaraj
3.Sivagami
... Defendants/Respondents/ Respondents
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgment and decree of the Principal District Judge's
Court at Dharmapuri dated 20.02.2020 in A.S.No.26 of 2018 confirming
the judgment and decree of the Subordinate Judge's Court at Harur, dated
1/10
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S.A.No.403 of 2020
21.08.2018 passed in O.S.No.39 of 2016.
For Appellants : Mr.P.Valliappan
For Respondents : M/s C.Prabhakaran [R.1 to R.3]
JUDGMENT
The plaintiffs who lost in both the Courts below with reference to the
Item no.6 of the suit schedule property are the appellants before this Court.
The plaintiffs had filed a suit for partition of their 2/5th share in the suit
schedule properties. The schedule property consist of 6 items of property.
The plaintiffs had contended that the suit property and other properties
belonged to their grand father Munusamy Pillai. Thereafter it was in the joint
possession of Karuppan, Duraisamy and the 1st defendant who is none other
than the father of the plaintiffs and defendants. 40 years prior to the filing of
the suit an oral partition had taken place in which the suit schedule properties
were allotted to the 1st defendant. The properties have been in the joint
possession of the plaintiffs and the defendants. The 1st defendant was dealing
with the properties as a Karta.
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S.A.No.403 of 2020
2. While so, the 6th schedule of property was fraudulently purchased in
the name of the 3rd defendant out of the joint family funds. Despite
demanding partition of the properties, the defendants were not coming
forward to partition the properties. On 15.03.2016 the plaintiffs came to
know that the defendants were trying to create fabricated documents for
obtaining a loan from the bank, therefore they had filed the suit for partition
and injunction.
3. The 1st defendant had filed a written statement which was adopted
by the other defendants in which he had contended that the suit item nos.1, 2,
3 & 5 were available for partition whereas the 4th item of property was
purchased in the individual name belonging of the 1st defendant and likewise,
the 6th schedule property belonged to the 3rd defendant who had purchased
the same utilizing the sale consideration received by her husband Periyasamy
from the sale of his lands to one Puttu @ Govindasamy. After trial the suit
was decreed in respect of Item Nos.1 to 3 and dismissed with reference to
Item No.6.
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S.A.No.403 of 2020
4. The Trial Court had stated that since the 6th item of property stood
in the name of the 3rd defendant by virtue of Section 14(1) of the Hindu
Succession Act, 1956. The same has enlarged into the absolute estate
(incidentally this was no one case and in fact Section 14(1) had not been
pleaded by the defendants) of the 3rd defendant by virtue of Section 14 of the
Hindu Succession Act. This order was taken up on challenge by the plaintiff
in A.S.No.26 of 2018 on the file of the Principal District Judge Dharmapuri.
The Principal District Judge Dharmapuri after extracting the pleadings and
the arguments and by relying upon the stray admissions in evidence and also
referring to the various judgments and extracting therefrom, dismissed the
appeal. The entire discussion of the order is contained in paragraph nos.13 to
15 is extracted herein below:-
"13. After the analysis, evidence and document
perused by the trial court, the preliminary decree passed
item 1 to 5 of the suit properties and dismissed for the 6th
item of the schedule property.
14. In view of the foregoing reasons and discussions,
this court holds that there are no valid merits and reasons
to warrant interference and to set aside the decree and
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S.A.No.403 of 2020
judgement of Subordinate Judge, Harur, in
O.S.No.39/2016. Thus this point is answered.
15. In the result, this appeal is dismissed. The decree
and judgement of the learned Subordinate Judge, Harur, in
O.S.No.39/2016, is hereby confirmed. No costs."
5. Mr.P.Valliappan, appearing on behalf of the appellants would
submit that the Appellate Court being the final Court of fact, the learned
Judge ought to have considered the issues and evidence and framed the
points for consideration properly and discussed the same with reference to
the Judgement and Decree of the Trial Court and pass a considered
Judgement thereafter. He would submit that none of these ingredients is seen
in the judgment of the lower Appellate Court.
6. Mr. C.Prabhakaran, appearing on behalf of the respondent would
submit that the appellants/plaintiffs have admitted that the suit properties
stand in the name of the 3rd defendant. He would submit that the appellants
who had come forward with a case that the sixth item of property was also
purchased in the name of the third defendant with utilizing the joint family
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S.A.No.403 of 2020
funds has not proved the same and therefore, the Judgement of the lower
Appellate Court has to be confirmed.
7. Heard the counsels and perused the judgment in question. The
following Substantial Question of law arises for consideration in this Second
Appeal and counsels have addressed arguments in the same.
"Whether the judgment and decree of the Lower
Appellate Court is substantially erroneous in law in as much
as the judgment does not reflect a conscious application of
mind and does not contains reasons for arriving at the
conclusion."
8. The appeal has been filed only in respect of the 6th item of suit
schedule property. Since a decree has been granted with reference to the
other items of properties, extensive arguments have been made before the
learned District Judge in respect of that portion of the judgement which
denies the plaintiff their right to the 6th item of the property. A perusal of the
judgement under appeal does not reflect this issue as a point for consideration
and there is no discussion about the same.
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S.A.No.403 of 2020
9. The learned judge has in a very perfunctory fashion dealt with the
sole point for consideration framed i.e; Whether the appeal deserves to be
allowed or not. The judgment does not consider any of the grounds raised by
the plaintiffs, particularly the plea raised by them that the 3rd defendant, the
owner of the 6th item of the property has not entered the box to substantiate
her case that she has purchased the properties utilizing the funds of her
husband from the sale of the property. The entire discussions of the Lower
Appellate Court in its judgement is extracted herein below:-
"13. After the analysis, evidence and document
perused by the trial court, the preliminary decree
passed item 1 to 5 of the suit properties and dismissed
for the 6th item of the schedule property.
14. In view of the foregoing reasons and discussions,
this court holds that there are no valid merits and reasons
to warrant interference and to set aside the decree and
judgement of Subordinate Judge, Harur, in
O.S.No.39/2016. Thus this point is answered.
15. In the result, this appeal is dismissed. The decree
and judgement of the learned Subordinate Judge, Harur, in
O.S.No.39/2016, is hereby confirmed. No costs."
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S.A.No.403 of 2020
10. A reading of the above clearly shows that there is no application of
mind on the part of the lower Appellate Court. Being the final Court of fact
the Lower Appellate Court ought to have elaborately and independently
considered the judgement on appeal before it and passed a reasoned
judgement. The Hon'ble Supreme Court in the Judgement reported in 2001
(3) SCC 129 Santhosh Hazari Vs. Purushottam Tiwari (deceased) by LRs
has held as follows:-
"The appellate Court has jurisdiction to reverse or
affirm the findings of the Trial Court. First Appeal is a
valuable right of the parties unless restricted by law, the
whole case is therein open for rehearing both on the
questions of fact and law. the Judgement of the Appellate
Court must, therefore, reflect its conscious application of
mind and record findings supported by reasons, on all the
issues arising alongwith the contentions put forth, and
pressed by the parties for the decision of the Appellate
Court"
Unfortunately, this exercise has not been done by the Lower Appellate
Court in the instant case.
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S.A.No.403 of 2020
11. In these circumstances the appeal is allowed and the matter is
remitted back to the Subordinate Judge's Court at Harur who shall on receipt
of the records from this Court proceed to dispose of the appeal within a
period two months from the date of receipt of a copy of this Judgement after
framing the relevant points for consideration. Since the matter is being
remitted back to the Trial Court the Substantial Questions of Law need not be
considered at length. No costs. Consequently, the connected Civil
Miscellaneous Petition is closed.
05.07.2022
Index : Yes/No
Internet : Yes/No
shr
To
1.The Principal District Judge's Court at Dharmapuri.
2.The Subordinate Judge's Court at Harur.
https://www.mhc.tn.gov.in/judis
S.A.No.403 of 2020
P.T. ASHA, J,
shr
S.A.No.403 of 2020
and
C.M.P.No.8112 of 2020
05.07.2022
https://www.mhc.tn.gov.in/judis
