Madras High Court
Sampoornammal (Died) vs Samrajammal on 28 April, 2023
S.A.Nos.485 & 486 of 1999
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28..04..2023
Coram
THE HON'BLE MR JUSTICE V. LAKSHMINARAYANAN
Second Appeal Nos.485 & 486 of 1999
and
C.M.P.Nos.21297 &21298 of 2022
S.A.No.485 of 1999
1. Sampoornammal (Died)
2. M.Kothandaram
[2nd Appellant brought on record as legal representative of the
deceased sole appellant - Sampoornammal vide order dated
01.02.2019 made in C.M.P.No.21364 of 2017,
C.M.P.Nos.2542, 2513, 2525 & 2520 of 2019 in S.A.No.485
of 1999]
..... Appellants
-Versus-
1. Samrajammal
2. Rathinammal
3. Vijaya
4. Malleswari
5. Premakumari
6. Sridharan
7. Sujatha
8. Karunakaran
9.Thulasi Naidu
10.Anandan
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S.A.Nos.485 & 486 of 1999
11.Madanan
12.Balan
13.Sampooranammal @ Chintamani
14.Bhuvaneswari (Died)
[Cause Title Accepted vide order dated 22.03.1999 made in C.M.P.No.4266 of 1999]
15.K.Narasimhan (Died)
16.Santhammal
17.K.Geetha
18.K.Naresh, Minor (Died)
Rep. by Mother and Natural Guardian
Mrs.Santhammal (16th respondent)
19.Kuppusami Naidu (Died)
20.Krishnamoorthy Naidu
21.Vinitha
22.Babu
23.Viba
[Respondents 20 to 23, already on record, recognized as
legal representatives of the deceased 14th respondent –
Bhuvaneswari vide order dated 12.04.2023 made in
C.M.P.No.7499 of 2023 in S.A.No.485 of 1999]
24.Ramesh
25.Sureka
26.Prasad
[Respondents 24 to 26 impleaded as legal
representatives of the deceased 15th respondent –
K.Narasimhan vide order dated 28.04.2023 made in
C.M.P.No.7500 of 2023 in S.A.No.485 of 1999]
27.Varalakshmi
28.Keerthana
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S.A.Nos.485 & 486 of 1999
[Respondents 27 & 28 impleaded as legal
representatives of the deceased 18th respondent –
K.Naresh (the then minor) vide order dated
28.04.2023 made in C.M.P.No.7508 of 2023 in
S.A.No.485 of 1999]
29.Nethaji
30.Indira
[Respondents 29 & 30 impleaded as legal
representatives of the deceased 19th respondent –
Kuppusamy Naidu vide order dated 28.04.2023
made in C.M.P.No.7506 of 2023 made in
S.A.No.485 of 1999]
..... Respondents
Appeal filed under Section 100 of C.P.C. against the judgment and
decree dated against the judgement and decree dated 28.07.1994 made in
A.S.No.115 of 1989 by the learned Subordinate Judge, Thiruvallur, reversing
the judgement and decree dated 28.04.1987 made in O.S.No.539 of 1981 on
the file of the learned District Munsif, Ponneri, granting a decree for partition of
the suit properties and future mesne profits.
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S.A.Nos.485 & 486 of 1999
S.A.No.486 of 1999
1. Sampoornammal (Died)
2. M.Kothandaram
[2nd Appellant brought on record as legal representative of the
deceased sole appellant - Sampoornammal vide order dated
01.02.2019 made in C.M.P.No.21364 of 2017,
C.M.P.Nos.2542, 2513, 2525 & 2520 of 2019 in S.A.No.485
of 1999 and C.M.P.No.21365 of 2017 & C.M.P.Nos.2543,
2541, 2539 & 2522 of 2019 in S.A.No.486 of 1999]
..... Appellants
-Versus-
1. Samrajammal
2. Rathinammal
3 .Sridharan
4. Karunakaran
5. Thulasi Naidu
6. Anandan
7. Madanan
8. Balan
9. Sampooranammal @ Chintamani
10.Bhuvaneswari (Died)
11.K.Narasimhan (Died)
12.Santhammal
13.K.Geetha
14.K.Naresh, Minor (Died)
Rep. by his mother and natural guardian,
the 12th respondent Santhammal
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S.A.Nos.485 & 486 of 1999
15.Kuppusami Naidu (Died)
[Cause Title Accepted vide order dated 22.03.1999 made in C.M.P.No.4265 of 1999]
16.Krishnamoorthy Naidu
17.Vinitha
18.Babu
19.Viba
[Respondents 16 to 19 brought on record as legal
representatives of the deceased 10 th respondent –
Bhuvaneswari vide order dated 28.04.2023 made in
C.M.P.No.7507 of 2023 in S.A.No.486 of 1999]
20.Ramesh
21.Surekha
22.Prasad
[Respondents 20 to 22 brought on record as legal
representatives of the deceased 11 th respondent –
K.Narasimhan vide order dated 28.04.2023 made in
C.M.P.No.7511 of 2023 in S.A.No.486 of 1999]
23.Varalakshmi
24.Keerthana
[Respondents 23 & 24 brought on record as legal heirs of
the deceased 14th respondent – K.Naresh, the then minor,
vide order dated 28.04.2023 made in C.M.P.No.7512 of
2023 in S.A.No.486 of 1999]
25.Nethaji
26.Indira
[Respondents 25 & 26 brought on record as legal
representatives of the deceased 15the respondent –
Kuppusamy Naidu vide order dated 28.04.2023 made in
C.M.P.No.7502 of 2023 in S.A.No.486 of 1999]
..... Respondents
Appeal filed under Section 100 of C.P.C. against the judgment and
decree dated against the judgement and decree dated 28.07.1994 made in
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S.A.Nos.485 & 486 of 1999
A.S.No.114 of 1989 by the learned Subordinate Judge, Thiruvallur, confirming
the judgement and decree dated 28.04.1987 made in O.S.No.539 of 1981 on
the file of the learned District Munsif, Ponneri, granting a decree for partition of
the suit properties and future mesne profits.
For Appellant(s) in : Mr.V.B.Thirupathi Kumar
for 2nd Appellant in both Second
Appeals
1st Appellant in both Second
Appeals died
For Respondents : Mr.K.S.Vaithyanathan for
RR6, 8 to 12 in S.A.No.485 of
Mr.M.Sri Ram for RR3 to 5, 7 &
RR2, 13 & 20 to 23 Notice Not
Ready in S.A.No.485 of 1999
RR1 & 16 in S.A.No.485 of 1999
reported dead and steps not
taken
RR14, 15, 18 & 19 in S.A.No.485
of 1999 died steps taken
Dr.S.S.Swaminathan for RR3 to 8
in S.A.No.486 of 1999
RR 1 & 12 in S.A.No.486 of 1999
reported dead and steps not
taken
RR2, 9 & 13 in S.A.No.486 of
1999 Notice not ready
RR10, 11, 14 & 15 died steps
taken
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S.A.Nos.485 & 486 of 1999
COMMONJUDGEMENT
The present second appeal is presented by the 3 rd defendant. The suit
arises out of O.SNo.539 of 1981 on the file of the District Munsif, Ponneri.
The suit was presented by her brothers Doraiswami Naidu and Ramanatha
Naidu seeking ¼th share in the suit property. The other sharers were Subba
Naidu and Kannaiah Naidu, who were impleaded as defendants 1 and 2. As
already pointed out, the 3rd defendant is the appellant in whose name the
property had been purchased benami on 27.10.1947 out of joint family assets.
2. It is the case of the plaintiff that the purchase was made by the 2 nd
defendant “benami” in the name of the 3rd defendant. It is the case of the 3rd
defendant that there was no joint family at all and that she had purchased the
property from and out of her own self-acquisitions.
3. The trial court granted a decree for partition and denied the decree for
mesne profits. On appeal, the first appellate court while confirming the decree
for partition, has granted mesne profits. Against the said judgement and decree
of the first appellate court confirming the decree for partition, S.A.No.485 of
1999 has been presented and as against the decree and judgement granting
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S.A.Nos.485 & 486 of 1999
mesne profits, S.A.No.486 of 1999 has been presented.
4. I heard either side.
5. At the time of admission, the following substantial questions have been
formulated for consideration at the time of disposal:-
“Whether the lower appellate court is right in law in
holding that the prohibition contained in Benami
Transactions (Prohibition) Act, 45 of 1988 would not
apply to the facts of the case?
6. It is on record that Ex.A.1 to A5 had been exhibited by the plaintiffs.
The 2nd Plaintiff - Ramanatha Naidu examined himself as P.W.1 and the son of
the 3rd defendant - Sampoornammal viz., Kothandaram examined himself as
D.W.1. On the side of the plaintiff, Ex.A.1 to A5 were marked while on the side
of the defendants no documentary evidence had been produced.
7. The issue of benami would have been an interesting question if not for
the judgement of this Court under Ex.A.5. Sampoornammal had presented
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S.A.No.1806 of 1977 against the judgement of the court of the District Judge in
A.S.No.61 of 1974 confirming the judgement and decree of the learned
Subordinate Judge, Chengalpattu in C.R.O.P.No.95 of 1967.The said
C.R.O.P.No.95 of 1967 came to be presented under Section 31(2) of the Land
Acquisition Act, 1894 in order to decide as to who is the “person interested” in
getting the compensation for the land which were acquired by the Special
Tahsildar for the public purpose viz., laying out water channel with respect to
Redhills Scheme.
8. In the said proceedings in C.R.O.P.No. 95 of 1967, the deceased 3 rd
defendant [1st appellant before me] was the 1st claimant and Doraiswami Naidu
and Ramanatha Naidu were claimants 2 and 3 respectively. The subject matter
of the property is the same in both proceedings.
9. At the time of entering upon the judgement, the court in
C.R.O.P.No.95 of 1967 had held that the property had been purchased benami
in the name of the 3rd defendant. The said finding was taken on appeal in
A.S.No.61 of 1974. The contention of the deceased 1st appellant as the 1st
claimant in those proceedings, was that, the purchase was made by her out of
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her self acquisition and she was not a mere name lender as contended by her
brothers Doraiswami Naidu and Ramanatha Naidu. In other words, the plea
that was raised before me was raised before the courts in the previous
proceedings. Considering the evidence before him, the learned District Judge at
para 10 of his judgement had held as under:-
“10. The contention of the learned counsel for the
appellant that in the year 1949, the land under dispute
was not divided between the members of the composite
family and even under Ex.A.3, the said item has not
been divided by metes and bounds, and, therefore, the
property did not belong to the rival claimants, cannot be
said to be readily acceptable, having regard to the
available evidence in the case. The fact that the rival
claimants had obtained a release deed Ex.A.5 from
Athilakshmi Ammal but they did not obtain any such
release deed from the 1st claimant cannot also be said to
be a circumstance against the respondents. It may be
that they were not able to do so. C.W.1 has stated that
inasmuch as Ramadoss Naidu informed them that as he
has stated that as he himself is taking part in the
partition between them, in the year 1962, there was no
necessity for obtaining any release deed from his wife.
Therefore, it is probable that they did not obtain any
release deed from C.W.1. R.W.2 has only stated that he
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had been cultivating the lands for eight years which
may be after the dispute between the parties, and as
such, his evidence cannot be said to be helpful to the
case of the appellant. As already pointed out by me,
Kanniah Naidu or Subbiah Naidu the elder brother of
the 2nd and 3rd claimants who were parties to Ex.A.3
have not been examined in this case. All the tests with
regard to the benami purchase have been satisfied by
the rival claimants. The appellant cannot also be said to
have established the case of adverse possession with
regard to the land in dispute. Thus on a careful
consideration of the entire evidence available on record,
I am unable to accept the case of the appellant
regarding the claim for compensation. Accordingly, I
find the point against the appellant.”
10. Not being satisfied with the rejection of her appeal, she took it up
further before this Court in S.A.No.1806 of 1977. At that time, two substantial
questions of law were framed which are as follows:-
“1.Whether the courts below have failed to apply
the normal test to find out whether the sale in favour of
the appellant was benami for her brothers?
2. Assuming that the consideration came from
the appellant's brother, whether the courts below have
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failed to consider the intention of the parties, taking the
sale in the name of the appellant?”
11. Even without issuing notice in the said appeal, this court held that the
courts below had applied the proper test for coming out with the plea of benami
and had rightly come to the conclusion that the appellant was only a name
lender with regard to the purchase of the suit property. It also held the appellant
had not substantiated that the respondents and others had intended the
purchase of the property to the benefit of the appellant when the said purchase
was made in her name. The second appeal was dismissed. Consequently, the
argument that the appellant had purchased the property from and out of her
own earnings and was not a name lender for her brothers had already been
concluded by the Subordinate Judge in C.R.O.P.No.95 of 1967, which was
confirmed in appeal by the District Judge which had in turn been confirmed by
this court. The said finding had attained finality. The said finding operates as
res judicata, as the parties in that suit and in the present proceedings, are one
and the same and the subject matter of the property is also one and the same
and that finding having reached the finality, cannot be reopened by me in the
present second appeal. It is pertinent to point out that under Section 31 of the
Land Acquisition Act, 1894, the determination of compensation by the court is
in the nature of a finding of a civil court and therefore, the same would operate
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as res judicata as pointed out above.
12. Apart from the above, I also draw an adverse inference against the
appellant for not having entered into witness box. This is because, had she
entered the witness box she would have to face cross examination with respect
of Ex.A.3 to Ex.A5 and perhaps would not have been in a position to wriggle
out the situation. She conveniently chose to examine only her son who was but
a toddler at the time of purchase. The court below have rightly come to a
conclusion on the basis of Ex.A.3 to Ex.A.5 that the property was purchased by
the joint family in the name of the sister benami (deceased 1 st appellant) and
she is only a name lender. That issue having been concluded till this court in
the previous round of litigation, the question of law that has been projected by
the learned counsel for the appellant does not arise for consideration at all.
Despite his strenuous arguments, I am unable to persuade myself to agree with
him.
13. For the aforesaid discussions, the judgement and decree of the
learned Subordinate Judge, Tiruvallur, in AS.Nos.114 of 1989 and 115 of 1989
dated 28.07.1994 in partly confirming and partly reversing the judgement and
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S.A.Nos.485 & 486 of 1999
decree of the learned District Munsif, Ponneri, in O.S.No.539 of 1981 dated
28.04.1987 is liable to be confirmed and both second appeals are liable to be
dismissed. Considering the close relationship between the parties, I am not
inclined to order for any costs.
14. The leaned counsel for the appellant would press into service
C.M.P.Nos.21297 & 21298 of 2022 in order to bring in before this court a
partition deed which had been entered into between the family on 29.02.1962.
I am not willing to entertain the prayer under Order 41, Rule 27 of CPC. I have
power to allow the application if only it satisfies the requirements of such
provision. Here is the case where the appellant had an opportunity to produce
these documents before the trial court or at least before the first appellate court.
Having failed to do so, I cannot come to a conclusion that the same was done
with due diligence. Consequently, the above civil miscellaneous petitions
deserve to be dismissed.
In the result, the second appeals are dismissed. The judgement and
decree passed by the learned Subordinate Judge, Thiruvallur, dated 28.07.1994
in A.S.Nos.114 of 1989 and A.S.No.115 of 1989 in partly confirming and
partly reversing the judgement and decree dated 28.04.1987 in O.S.No.539 of
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1981 on the file of the District Munsif, Ponneri, are confirmed. Both parties
shall bear their respective costs in the present proceedings. C.M.P.Nos.21297 &
21298 of 2022 are also dismissed.
28..04..2023
Index : yes / no
Neutral Citation : yes / no
Speaking / Non Speaking Order
kmk
Note: Draft Decree on or before 31.05.2023.
To
1.The Subordinate Judge, Thiruvallur, Thiruvallur District.
2.The District Munsif, Ponneri, Thiruvallur District.
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S.A.Nos.485 & 486 of 1999
V.LAKSHMINARAYANAN, J.
kmk
S.A.Nos.485 & 486 of 1999
28..04..2023
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