Madras High Court
B.Mohanraj ...Defendant / ... vs B.Kannan . ...Plaintiff / ... on 15 June, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 15.06.2022
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
S.A.No.1138 of 2010
and
M.P.No.1 of 2010
B.Mohanraj ...Defendant / Respondent / Appellant
Vs
B.Kannan . ...Plaintiff / Appellant / Respondent
The Second Appeal filed under Section 100 of CPC, against the
judgment and decree made in A.S.No.485 of 2007 dated 17.09.2009 on the
file of the Additional District Court No.II, Fast Track Court, Chennai
modifying the judgment and decree made in O.S.No.5041 of 2003 dated
30.11.2006 on the file of the III Assistant City Civil Court, Chennai.
For Appellant : Mr.B.Vijay
for M/s.Sampathkumar Associates
For Respondent : Mr.A.Thiagarajan, Senior Counsel
for Mr.J.Radhakrishnan
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2
JUDGMENT
Heard Mr.B.Vijay, learned counsel for the appellant for
M/s.Sampathkumar Associates and Mr.A.Thiagarajan, learned Senior
Counsel for Mr.J.Radhakrishnan, learned counsel for the respondent.
2.The Second Appeal had been filed questioning the judgment and
decree of the First Appellate Court reversing the judgment and decree of the
Trial Court. The suit in O.S.No.5041 of 2003 was filed by the respondent
herein as plaintiff seeking 7/8th undivided share in the suit properties, which
were given as A and B schedule of the properties to the plaint.
3.The present appellant / defendant claimed that he is entitled to the
entire property, in view of Ex.B1, settlement deed. However, both the Courts
below have held that Ex.B1, settlement deed had not been proved in manner
known to law.
4.It is to be pointed out that any settlement deed will necessarily have
to be attested and in accordance with such execution, it has to be proved as
per Section 68 of the Indian Evidence Act, 1872. Ex.B1, settlement deed
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though marked was not proved to the satisfaction of both the Courts below.
The Trial Court had granted a preliminary decree for an undivided 3/4 th
share to the respondent / plaintiff.
5.Both the plaintiff and the appellant / defendant filed First Appeals in
A.Nos.453 & 485 of 2007. The learned First Appellate Court Judge had re-
examined the entire evidence and had also framed necessary points for
consideration under Order 41 Rule 31 of CPC. The learned First Appellate
Judge also held that Ex.B1 had not been proved in manner known to law.
However, the learned First Appellate Judge held that the plaintiff /
respondent herein was entitled to an undivided 7/8th share and had
accordingly modified the preliminary decree granted by the Trial Court and
had granted partition and separate possession of an undivided 7/8th share in
the suit properties.
6.Questioning that particular judgment, the present Second Appeal
has been filed. The Second Appeal had been pending on the file of this Court
from the year 2010. Successive learned Judges who had heard the learned
counsel for the appellant thought that it did not merit framing of any
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substantial question of law.
7.The entire issue revolves around only one issue namely, the proof of
Ex.B1. Ex.B1 settlement deed had not been proved in manner known to law.
Ex.B1, is settlement deed and the same has to be proved in manner known
to law. The attesting witness will have to be examined. The fact that the
settler had handed over possession to the settlee will have to be established.
All these factors have not been proved. Both the Courts below have
therefore gone back to divide the properties in the ratio to which the parties
are entitled to. They were entitled to an undivided 1/8th share for the
appellant herein and an undivided 7/8th share for the respondent / plaintiff
herein.
8.I hold no substantial questions of law arise. The Second Appeal has
to be dismissed.
9.A direction is given to the Trial Court namely, the III Assistant City
Civil Court, Chennai, wherein in O.S.No.5041 of 2003 a preliminary decree
had been passed to list the matter for taking steps under Order XX Rule 18
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of CPC, suo motto, without requiring initiation of separate proceedings in
accordance with the judgment of the Hon'ble Supreme Court in Kattukandi
Edathil Krishnan & Others Vs. Kattukandi Edathil Valsan & Others, in
Civil Appeal Nos.6406 – 6407 of 2010, dated 13.06.2022, and take upon
itself to automatically issue notice to the parties and proceed further with
respect to passing final decree in the said suit, by appointment of an
Advocate Commissioner and dividing the property in accordance with the
ratio as determined by the First Appellate Court and as upheld by this Court.
10.Therefore, the Second Appeal is dismissed. In view of the fact that
both the parties are relatives, no order as to costs. Consequently, the
connected Civil Miscellaneous Petition is closed.
15.06.2022
Index:Yes/No
Internet:Yes/No
smv
C.V.KARTHIKEYAN.,J
smv
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To
1.The Additional District Court No.II, Fast Track Court, Chennai.
2.The III Assistant City Civil Court, Chennai.
3.The Section Officer, VR Section, Madras High Court.
S.A.No.1138 of 2010
15.06.2022
https://www.mhc.tn.gov.in/judis
