Madras High Court

Kabilan ... Defendant / ... vs Thulasingam on 29 June, 2022

                                                                                 S.A.No.495 of 2022


                             IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                             DATED: 29.06.2022

                                                  CORAM

                                  THE HONOURABLE Ms. JUSTICE P.T. ASHA

                                             S.A.No.495 of 2022
                                                    and
                                           C.M.P.No.9884 of 2022


                     Kabilan                     ... Defendant / Respondent / Appellant

                                                 Vs

                     1.Thulasingam
                     2.Shanthi
                     3.Krishnaveni
                     4.Prakash
                     5.Vijayalakshmi
                     6.Vijaya                    ... Plaintiffs / Appellants / Respondents



                     Prayer: Second Appeal filed under Section 100 of the Civil Procedure
                     Code 1908, praying to set aside the decree and judgment made in
                     A.S.No.12 of 017 on the file of the learned Sessions Judge, Mahila
                     Court, Cuddalore, dated 29.03.2021 reversing the decree and judgment

                     1/13



https://www.mhc.tn.gov.in/judis
                                                                                                                 S.A.No.495 of 2022


                     made in O.S.No.157 of 2016 on the file of the learned Principal Sub
                     Judge, Cuddalore dated 05.01.2017.


                                        For Appellant             :        Mr.P. Vasudevan

                                                               JUDGEMENT

The unsuccessful defendant before the Appellate Court is the

appellant before this Court, challenging the decree for declaration,

recovery of possession and damages.

2. In order to morefully appreciate the issue on hand, it is

necessary to briefly set out the genealogy of the plaintiffs' family.

Chinnathambi @ Chinnaiyan (died 1990)

Maragadambal (died 01.11.2014) |

-------------------------------------------------------------------------------------------------------------

                              |            |         |               |                |                |                        |
                     Shanthi Krishnaveni Thulasingam                        Prakash Mathivanan                Deenadayalan
                                                                       Kabilan
                     (P-2)          (P-3)              (P-1)      (P-4) (died 09.12.2019) (died 25.06.2004) (D)
                                                                              =                       =
                                                                         Vijayalakshmi              Vijaya
                                                                              (P-5)                  (P-6)






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                                                                                           S.A.No.495 of 2022

3. The case of the plaintiffs is that the suit schedule property

was purchased in the name of their mother, Maragadhammal, who

remained in possession of the property till her death. There was a hut

in the said property consisting of three portions facing South. The said

Maragadhammal, after her husband's demise, was living in the western

portion along with plaintiffs 2 and 4, who were unmarried. The

middle portion was occupied by another pre-deceased son,

Deenadayalan and his wife, the 6th plaintiff herein. The eastern portion

of the property was lying vacant. On 21.11.2005, the said

Maragadhammal had executed a Registered Will bequeathing the

property in favour of her children except the defendant. Since her son,

Dheenadayalan pre-deceased her, his share was given to his wife, the

6th plaintiff. The defendant was excluded, since he was well placed

when compared to the others. After the death of Maragadhammal, the

Will came into effect. The defendant, who came for the funeral of his

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mother, forcibly occupied the property, though he was aware of the fact

that the property has been bequeathed in favour of the plaintiffs and the

other son, Mathivanan and the 6th plaintiff. The plaintiffs' request and

demand to the defendant to vacate the property did not yield the

requisite results. Thereafter, the defendant had started to put up a

construction in the western portion abutting the road. Therefore, the

plaintiff had come forward with the suit for the reliefs claimed supra.

4. The defendant had filed a written statement inter-alia

contending that the suit is bad for non-joinder of necessary parties,

since the children of the 5th and 6th plaintiffs have not been

impleaded. It is the case of the defendant that he had been living in the

property with his mother and the plaintiffs were all residing outside for

over 25 years. He would contend that he was not a man of means and

just eking out his livelihood by working as a mason and his wife did

tailoring work. It is the case of the defendant that the Will was a

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forged one, since he was the only one taking care of her mother. On

11.01.2006, when the mother was alive, it was agreed that the property

would be sold and the proceeds shared by all children. This agreement

was reduced into writing. It is also the case of the defendant that he

had been allotted the western portion abutting the road.

5. The suit O.S.No.157 of 2016 was filed by the plaintiffs

before the Principal Subordinate Judge, Cuddalore. The learned Judge

had framed the following issues:

i) Whether the plaintiffs are entitled to the declaration, possession, damages and permanent injunction?

ii) What relief the plaintiffs are entitled to?

Thereafter, the learned Judge had framed the following additional issues:

(i) Whether the Will dated 21.11.2005 said to have been executed by one Maragadhammal is a genuine one?

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ii) Whether the suit is bad for non-joinder of necessary parties?

iii) Whether the suit has been properly valued?

6. The plaintiffs had examined 3 witnesses on their side and

marked Exs.A1 to A23. On the side of the defendant, he had examined

himself as D.W1 and marked Exs.B1 to B24.

7. The learned Principal Subordinate Judge, Cuddalore on

considering the evidence on record, returned a finding on the additional

issue No.1 framed on 05.01.2017 that the Will dated 21.11.2005 is a

genuine one and that the plaintiffs had proved the same in the manner

known to law. The learned Judge has also extensively dealt with the

fact that a proper explanation was given for disinheriting the defendant.

However, the learned Judge dismissed the suit on the ground of non-

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joinder of necessary parties stating that the 5th and 6th plaintiffs had

children, who have not been impleaded and therefore, the suit was bad

for non-joinder of necessary parties. That apart, the learned Judge had

also held that the property had not been properly valued and therefore,

the suit was also dismissed. Aggrieved by the same, the plaintiffs have

preferred an appeal in A.S.No.12 of 2017 on the file of the learned

Sessions Judge, Mahila Court, Cuddalore. The learned Judge, on

considering the evidence, came to the conclusion that the suit cannot be

dismissed for non-joinder of necessary parties and on the ground of

improper valuation. The learned Judge had held that the Trial Court

ought to have given time to the plaintiffs, if the Court had held that the

suit was not properly valued and there is non-joinder of necessary

parties. Challenging this judgment and decree, the defendant is before

this Court.

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8. A perusal of grounds of appeal would indicate that the

defendant has challenged the judgment of the lower Appellate Court

only on the ground of non-joinder and on the ground of under-

valuation. They have not questioned the finding of the trial Court

insofar as it has upheld the Will dated 21.11.2005.

9. Heard the learned counsel appearing for the appellant and

perused the materials available on record.

10. The two grounds on which the Trial Court had non-suited

the plaintiffs are (i) non-joinder of necessary parties and (ii) improperly

valuing the suit.

11. As regards the first issue, under the Will dated 22.11.2005,

the said Maragadhammal had bequeathed the property in favour of the

plaintiffs, the son Mathivanan (who has since died) and his wife has

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been impleaded as the 5th plaintiff and the 6th plaintiff, who is the wife

of her pre-deceased son Deenadhayalan.

12. Therefore, the institution of the suit by these persons, who

have interest in the property on the strength of the Will is a sufficient

representation. The plaintiffs seek to have their right declared only on

the basis of the Will dated 22.11.2005. The legatees have been

adequately represented and there is no rival claim along themselves.

The appellate Court has rightly considered the same and set aside the

findings of the Trial Court on this ground.

13. As regards the second issue on the valuation of the suit

property, the lower Appellate Court, while reversing the finding, has

observed as follows:-

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"23. Another issue, which was decided against the plaintiffs, is on the valuation of the suit property. In the written statement filed by the defendant, it is stated that the plaintiffs are not in possession and there is no plea of joint possession, and therefore, the valuation under Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act, is baseless, while a perusal of the plaint shows that for declaration of title, the property was valued under Section 25(a) and for the relief for permanent injunction it was valued under Section 27(c) of the said Act. It is the contention of the defendant that the value of the suit property was not less than Rs.40,00,000/-. However, the defendant has not produced any material showing that the property is valued at more than Rs.40,00,000/-. In this context, it could be mentioned that the defendant did not taken any steps to take up the matter as regards the under- valuation of the suit, as a preliminary issue, before the learned trial Court. It is the contention of the defendant that he took up before the learned trial Court to frame a preliminary issue as regards the under valuation of the suit property, and however, the Court decided to discuss the issue at the time of final disposal of the suit. This contention of the defendant could not be accepted on the ground that even if this contention of the defendant is taken to be true,

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this Court is not able to understand as to what prevented the defendant from taking up the matter by way of revision or appeal, as the case may be, with a prayer to frame a preliminary issue and decide the matter, before the main issues were settled."

14. In this regard, the lower Appellate Court has also relied

upon the judgment of this High Court reported in 2006(2) CTC 747

[Govindaraj -vs- Ponnammal] in support of this finding, the defendant

ought have made a prayer before the Trial Court to frame an issue as

regards the alleged undervaluation and take up the same as preliminary

issue. Admittedly, such an exercise has not been undertaken by the

defendant. Further, the Appellate Court has also given reasons for

non-consideration of Ex.B14- a copy of the guideline value certificate

downloaded from the website. Considering the detailed and well

considered judgment of the lower Appellate Court, I see no reason to

interfere with the same. Further, no substantial questions of law has

been made out. In these circumstances, the Second Appeal is