Madras High Court
M.M.Madheswaran vs M.Gangayammal (Deceased) on 19 April, 2023
S.A.No.202 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.04.2023
CORAM
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
S.A.No.202 of 2008
M.M.Madheswaran ... Appellant
Vs.
1.M.Gangayammal (Deceased)
2.Tmt.Marammal
3.Smt.Pattaiyammal
4.Tmt.Kannammal
5.Venkatachalam
6.Tmt.Rajeswai
7.M.Sorojini
8.M.Mani (Deceased)
9.M.Mahendran
10.R.Jayammal
(R7 to R10 brought on record as LRs of the deceased R1 vide order of
this Court dated 31.10.2017 made in C.M.P.Nos.1 & 2 of 2009)
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11.Tmt.Chandra
12.M.Senthil Kumar (Deceased)
13.M.Sivasakthi
14.S.Mageshwari
15.Minor S.Chitrabala
16.Minor S.Dharshan ... Respondents
(R8 died, R11 to R13 brought on record as LRs of the Deceased R8 and
R12 died, R14 to R16 brought on record as LRs of the Deceased R12
vide order of this Court dated 28.11.2022 made in C.M.P.Nos.11230,
11232 & 11234 of 2021 and C.M.P.Nos.29, 33 & 35 of 2022 in
S.A.No.202 of 2008)
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgment and decree dated 15.11.2005 in
A.S.No.39 of 2005 on the file of the Principal Sub Court,
Gobichettipalayam, setting aside the Judgment and decree dated
22.06.2004 in O.S.No.492 of 1997 on the file of the District Munsif
Court, Gobichettipalayam.
For Appellant : Mr.K.M.Venugopal
for Mr.K.Vellayaraj
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For Respondents :
For R1 : Died (steps taken)
For R2 to R6 : Given up
For R7 & R10 : No appearance
For R8 & R12 : Died (steps taken)
For R9, R11,
R13 to R16 : Ms.Adishri
for Mr.N.Manokaran
JUDGMENT
The fifth defendant in O.S.No.492 of 1997 on the file of the
District Munsif Court, Gobichettipalayam and A.S.No.39 of 2005 on the
file of the Principal Sub Court, Gobichettipalayam, is the appellant
before this Court.
2. There was one Muthusamy Gounder, who married twice. His
first wife was one Pachamuthammal and the second wife was one
Rajeshwari. From the union between Muthusamy Gounder and
Pachamuthammal, they got four daughters and one son. The daughters
are Gangayammal, Mariammal, Pattayammal and Kannammal and the
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son was Krishnasamy. The said Gangayammal had one son, by name
Matheswaran.
3. The suit relates to the absolute properties of the said
Pachamuthammal. The said Matheswaran claimed that his grand mother
Pachamuthammal had orally gifted the property to him and that, the same
was recorded by the Criminal Court in S.T.R.No.1657 of 1997 on the file
of the Judicial Magistrate Court at Bhavani.
4. On the strength of this oral gift, he had filed O.S.No.274 of 1991
seeking declaration of his title. The learned Subordinate Judge at
Gobichettipalayam had dismissed the suit.
5. Against the same, a regular appeal was filed in A.S.No.390 of
1997 on the file of the District Court at Erode. The said appeal also
ended in dismissal.
6. The learned counsel appearing for the appellant would plead
that a second appeal was preferred by the appellant from the said
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Judgment, but, unfortunately he is not in a position to furnish the SR
number or the second appeal number or what happened to the fate of the
papers said to have been filed in the second appeal against A.S.No.390 of
1997.
7. Pending the appeal, the mother of Matheswaran i.e.,
Gangayammal presented the present suit for partition. She impleaded her
father Muthusamy Gounder, her siblings as well as the son of her only
brother Venkatachalam. She claimed 1/5th share in the suit schedule
property. The said suit was dismissed by the learned Trial Judge on the
ground that since the proceedings initiated by Matheswaran, the
appellant/fifth defendant had not yet concluded, in the sense that
A.S.No.390 of 1997 was still pending, on the date on which, O.S.No.492
of 1997 was filed, the suit for partition is not maintainable.
8. Against the said Judgment and decree, Gangayammal filed
A.S.No.39 of 2005. It is pertinent to point out that when A.S.No.39 of
2005 was taken up, the appeal in A.S.No.390 of 1997 against the
Judgment and Decree in O.S.No.274 of 1991 had been disposed of.
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9. Consequently, there being no bar, the learned Principal
Subordinate Judge, Gobichettipalayam decreed the suit as prayed for
granting 1/5th share to the plaintiff.
10. Aggrieved by the said Judgment and Decree, the present
second appeal has been filed.
11. Heard Mr.K.M.Venugopal for Mr.K.Vellayaraj appearing for
the appellant and Ms.Adishri for Mr.N.Manokaran appearing for R9,
R11, R13 to R16.
12. Mr.K.M.Venugopal would vehemently contend that as the
second appeal was pending against the Judgment and decree of the Court
in A.S.No.390 of 1997, the learned Principal Subordinate Judge,
Gobichettipalayam had erred in decreeing the suit as prayed for. He
would also argue that since Venkatachalam, the fifth respondent/sixth
defendant does not have a right in the property of his grand mother, the
Court ought not to have granted him the relief in the suit.
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13. He would also claim that the appellant has perfected his title to
the property by adverse possession and therefore, the Judgment of the
Principal Subordinate Judge, Gobichettipalayam deserves to be reversed
and the appeal has to be accepted.
14. Countering the arguments, Ms.Adishri for Mr.N.Manokaran
appearing for R9, R11, R13 to R16 would submit that there is no proof
that a second appeal had been preferred from the Judgment and decree of
the District Court at Erode in A.S.No.390 of 1997 and therefore, the
Lower Appellate Court rightly concluded that the plaintiff is entitled to
1/5th share. She would further submit that the son of a pre-deceased son
is a Class-I Heir under the Hindu Succession Act, 1956, and therefore, he
is entitled to a share in his grand mother's property. Finally, she would
submit that there is no proof of adverse possession and O.S.No.274 of
1991 having been dismissed and the same plea cannot be reopened in the
suit for partition filed by the mother of the plaintiff in the said suit.
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15. This second appeal was admitted on 19.02.2008 on the
following substantial questions of law:-
“a. Whether the appellate Court is right in law in
not finding that the present suit is barred by principles
of Res-judicata?
b. Whether the appellate Court is right in law in
finding that all the proper and necessary parties have
been impleaded and as such the suit is not bad for non-
joinder?
c. Whether the appellate Court is right in law in
awarding a share to the brother of plaintiff who is
neither the legal heir of any party to the suit nor he is a
beneficiary under any document?
d. Whether the appellate Court is right in law in
rejecting the claim of adverse possession made by the
appellant (5th defendant) herein?”
16. I have carefully perused the pleadings. I have gone through the
evidence and the Judgment and decree in O.S.No.492 of 1997 as well as
A.S.No.39 of 2005.
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17. I am afraid that I am not in agreement with Mr.K.M.Venugopal
on a submission that since the appeal was pending, the Court below
ought not to have granted a decree for partition.
18. It is admitted by both sides that the appellant/fifth defendant
had filed O.S.No.274 of 1991 before the Sub Court, Gobichettipalayam
and had failed. He had taken the decree on appeal to A.S.No.390 of 1997
before the District Court at Erode and had also failed.
19. Though Mr.K.M.Venugopal would submit that a second appeal
is pending, till date, the SR Number or the second appeal number has not
been furnished. Therefore, I am constrained to presume that the appeal
in O.S.No.274 of 1991 as confirmed in A.S.No.390 of 1997 has become
final. The result flowing out this finality is that the property of
Pachamuthammal, who had died intestate, are liable to be partitioned.
The relationship between the parties is not in dispute and therefore, it is
simple application of the Hindu Succession Act, 1956.
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20. On his claim that Venkatachalam, the fifth respondent/sixth
defendant is not entitled to a share, I have to hold that the son of a pre-
deceased son is entitled to a share.
21. Finally, on the argument of adverse possession, I am unable to
accept the said plea, because, the suit for declaration of title on the basis
of the alleged gift itself, came to be filed only in the year 1991. For a
person, to perfect the title by adverse possession, there must be evidence
to prove the possession was open, hostile and continuous.
22. In the present case, the appellant/fifth defendant had neither
filed any exhibit nor had entered into the witnesses box. Therefore, the
plea of adverse possession is not proved. Adverse Possession requires
positive proof of all its aforesaid ingredients. As the appellant/fifth
defendant has kept away from the witness box, I cannot presume the
adverse possession.
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23. Apart from this fact, the present suit for partition had been
presented within six years of the claim made by Matheswaran that he is
the owner of the property. Therefore, the plea of adverse possession has
to fail.
24. In fine, the Judgment and decree of the learned Principal
Subordinate Judge, Gobichettipalayam in A.S.No.39 of 2005 dated
15.11.2005 in setting aside the Judgment and decree of the learned
District Munsif, Gobichettipalayam in O.S.No.492 of 1997 dated
22.06.2004 is confirmed. The Second Appeal is dismissed with costs.
25. This is a suit for partition. As directed by the Hon'ble Supreme
Court, the parties need not be pushed to file a separate application for
final decree. Therefore, the learned District Munsif, Gobichettipalayam
is hereby requested to initiate final decree proceedings and appoint a
Commissioner and ensure that the proceedings are concluded on or
before 30.11.2023. The Trial Court is requested to proceed further for
final decree proceedings on or from 05.06.2023.
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26. The parties shall appear before the learned Principal
Subordinate Judge, Gobichettipalayam on 05.06.2023. The parties
having been in litigation for over 32 years, the learned District Munsif is
requested to give priority and ensure that, the proceedings are completed,
in any event, before the date fixed by this Court on 30.11.2023.
27. The learned District Munsif, Gobichettipalayam shall ensure
that both the parties are heard and orders are passed at the earliest and
submit a report to this Court.
28. Absolute discretion is granted to the learned District Munsif,
Gobichettipalayam, to refuse any unnecessary adjournments. In case, he
feels that the parties are indulging in dilatory tactics, he may refuse the
same and proceed in accordance with law with all expedition which the
matter requires.
19.04.2023
Index : Yes/No
Speaking Order : Yes/No
Neutral Citation : Yes/No
arb
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V.LAKSHMINARAYANAN, J.
arb
To:
1.The District Munsif,
Gobichettipalayam.
2.The Principal Subordinate Judge,
Gobichettipalayam.
3.The Section Officer,
Vernacular Section,
High Court of Madras.
S.A.No.202 of 2008
19.04.2023
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