Madras High Court
Rajambal vs Sakunthala on 8 December, 2023
2024:MHC:5545
S.A.No.878 of 2002
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.12.2023
CORAM
THE HON'BLE Mr.JUSTICE C.KUMARAPPAN
S.A.No.878 of 2002
1.Rajambal
2.Andal ... Appellants
- Vs -
1.Sakunthala
2.Rajendran
3.Kamala
4.Ravi
5.Vijayalakshmi
6.Ramesh
7.Adhimoolam
8.Devaki(Died)
9.Haridoss (Died)
10.Meenakshi
11.Dhandapani(Died)
12.Sivagami
13.Thiruvengadam
14.Balu
15. Narayanan (Died)
16.Parthasarathy
17.Sasikala
18.Gouri
19.Mrs.Saraswathi
20.Ms.Uma
21.Krishnaraj
1/15
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S.A.No.878 of 2002
[Respondents 13 to 15 brought on record as
LRs of the deceased 8th respondent,
viz., Devaki vide Court Order
dated 30.01.2019 made in
C.M.P.No.538 to 540 of 2013
in S.A.No.878 of 2002]
[Respondents 16 to 18 brought on record as
LRs of the deceased 9th respondent viz.,
Haridoss vide Court Order dated 30.01.2019
made in C.M.P.No.541 to 542 of 2013 in
S.A.No.878 of 2002]
[Respondents 19 to 21 brought on record as
LRs of the deceased 11th respondent viz.,
Dhandapani vide Court Order dated 30.01.2019
made in C.M.P.No.525 to 527 of 2015 in
S.A.No.878 of 2002]
[15th respondent died (unmarried) is recorded
vide Court Order dated 28.11.2023 made in
S.A.No.898 of 2023] ... Respondents
PRAYER: Second Appeal is filed under Section 100 of the Civil
Procedure Code against the judgment and decree and Cross Appeal dated
29.11.2001 in A.S.No.70 of 1996 on the file of the Subordinate Court,
Panruti dismissing the appeal against the judgment and decree dated
14.02.1995 in O.S.No.469 of 1991 on the file of the District Munsif
Court, Panruti.
For Appellants : Mr.R.Sunilkumar
2/15
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S.A.No.878 of 2002
For Respondents : Mrs.R.Meenal
[R10, R12, R17 & R18]
R2, R3, R4, R6, R7, R13, R14,
R16, R19, R20 & R21 – Served –
No Appearance
R5 – Left
R1 – died – Steps taken
R8, R9, R11 & R15 - Died
*****
JUDGMENT
The instant second appeal has been filed at the instance of the
defendants 7 and 8. The respondents 1 to 6 are the legal heirs of the
deceased plaintiff and the respondents 7 to 12 are the defendants 1 to 6
before the trial Court.
2. For the sake of convenience, the parties will be referred to
according to their litigative status before the trial Court.
3. The brief facts which gives rise to the instant second appeal is
that:
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According to the plaintiff, the suit property is the absolute property
of mother of the plaintiff - Thaiyal Nayagi. After her demise, the plaintiff
become entitled for 1/3rd share. On the date of the filing of the suit,
among the 7 legal heirs of Thaiyal Nayagi, three legal heirs were alive and
others died issueless. According to the plaint, the plaintiff is the son of
Thaiyalnayagi and the defendants 1 to 6 are the grand children of Thaiyal
Nayagi through the other sons and the defendants 7 and 8 are the grand
daughters of Thaiyal Nayagi through her daughter Soramma.
4. The said suit was resisted by the defendants 1 to 8 on the
specific contention that the Thaiyal Nayagi died before the enactment of
Hindu Succession Act, 1956. Therefore, the property would devolve upon
her only daughter of Soramma, hence, plaintiff is not entitled for decree
of partition.
Evidence and documents:-
5. Before the trial Court, the plaintiff has examined three witnesses
as PW1, PW2 and PW3 and defendants have examined six witnesses as
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DW1 to DW6 and the plaintiff has marked six documents as Exs.A1 to
A6. On behalf of the defendants, eleven documents have been marked as
Exs.B1 to B11 and third party documents were marked as Exs.X-1 to X-
6. The trial Court while deciding the suit has framed the following
issues:
i) Whether the plaintiff is entitled for partition, if so
his quantum of share is ?
ii) Whether the Court has jurisdiction?
iii) Whether the sale deed dated 15.3.1961 is true
and valid ?
iv) To what other reliefs?
7. Apart from that following additional issue was also framed by
the trial Court on 21.10.1994, ''whether the defendants 1 to 6 perfected
title between adverse possession?''
Findings of the both the Courts below:-
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8. From the above issue, the trial Court has found that the plaintiff
is not entitled for a decree of partition. In respect of issue No.3, namely
Ex.B3, whether the sale deed dated 15.3.1961 is valid or not. The Trial
Court gave findings that it is not valid. However, the decree of dismissal
order is in favour of the all defendants 1 to 8.
9. Aggrieved with the same, the plaintiff has preferred an appeal
against the dismissal of the partition suit. In the said appeal, the
defendants 1 to 6 preferred a cross appeal against the findings for the
issue No.3 in respect of the sale deed dated 15.3.1961.
10. The First Appellate Court while confirming the findings of the
trial Court in respect of ultimate decision of dismissing the suit, in respect
of issue No.3 with regard to the validity of sale deed dated 15.3.1961, the
First Appellate Court reversed the findings and held that the sale deed
dated 15.3.1961 is valid and binding and if at all, if any one have
challenge the said document, they have to file a separate suit for setting
aside the sale deed.
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11. Again the defendants 7 and 8 who are aggrieved with the order
of the First Appellate Court in respect of dismissal of the suit in
O.S.No.469 of 1991 has preferred this second appeal against the reversal
finding recorded by the First Appellate Court in the Cross Appeal as to
the validity of the sale deed dated 15.3.1961, which allegedly executed by
the defendants 7 and 8 in favour of one Kausalya Ammal who is the
mother of the defendants 1 to 6.
12. From the above discussion, it is clear that the decree of
dismissing the partition suit is in favour of the defendants 1 to 8.
However, against the order of the cross appeal by the defendants 1 to 6,
the instant second appeal has been filed by the defendants 7 and 8. This
second appeal is only in respect of the validity of the sale deed executed
inter se between the defendants 7 and 8 are on one side, and the
defendants 1 to 6 on the other side. According to the defendants 7 and 8,
the sale deeds stand in the name of the defendants 1 to 6’s mother
Kausalya is void ab initio. Whereas, the defendants 1 to 6 states that the
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sale deed is true and valid. Aggrieved with the same, the defendants 7
and 8 are before this Court by way of this Second Appeal.
13. This Court while admitting the second appeal has framed the
following substantial questions of law :
''1.Whether the sale of the suit item inclusive of
the share of the minor Andal represented by
Ramakrishnan who was the maternal uncle without the
permission of the court under the provisions of
Guardian and Wards Act and the Hindu Minority and
Guardianship Act not void ab initio.
2. Whether the finding of the validity of the sale
exhibited as B3 which purported to contain the thumb
impression of Rajambal, even without examination of
any independent witnesses when the execution of the
document had been specifically denied in the written
statement is not vitiated?''
14. After hearing both sides, this Court deems it to appropriate that
the substantial question of law framed on 28.06.2002 is to be modified
as:
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Whether the findings recorded by the trial Court
in respect of the issue arising inter se defendant is
necessary for deciding the suit?
Analysis of the submissions:-
15. This Court is of the firm view that, the issue in respect of the
validity of the sale deed dated 15.3.1961 is arising only inter se
defendants. From the perusal of the written statement filed by both the
defendants, they categorically pleaded that the suit property originally
belonged to their mother Thaiyal Nayagi and that, on the death of Thaiyal
Nayagi prior to the enactment of Hindu Succession Act, 1956, the
property devolved upon the only daughter Soramma Upto this level, there
is no controversy or difference of opinion, between plaintiff, defendants 1
to 6 on one side, and the defendants 7 and 8 are on the other side. In
order to decide the partition suit, a material issue to which the trial Court
as well as the First Appellate Court found that, Thaiyal Nayagi died
before the commencement of Hindu Succession Act, 1956. As such, the
property has rightly devolved upon the Soramma, and eventually
dismissed the suit for partition.
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16. At this juncture, this Court deems it appropriate to extract
Order XIV Rule 1 CPC.
SETTLEMENT OF ISSUES AND
DETERMINATION OF SUIT ON ISSUES OF LAW OR
ON ISSUES AGREED UPON
(1) Framing of issues— (1) Issues arise when a
material proposition of fact or law is affirmed by the one
party and denied by the other.
(2) Material propositions are those propositions of
law or fact which a plaintiff must allege in order to show a
right to sue or a defendant must allege in order to
constitute his defence.
(3) Each material proposition affirmed by one party
and denied by the other shall form the subject of distinct
issue.
(4) Issues are of two kinds :
(a) issues of fact,
(b) issues of law.
(5) At the first hearing of the suit the Court shall,
after reading the plaint and the written statements, if any,
and [after examination under Rule 2 of Order X and after
hearing the parties or their pleaders,] ascertain upon what
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material propositions of fact or of law the parties are at
variance, and shall thereupon proceed to frame and
record the issues on which the right decision of the case
appears to depend.
(6) Nothing in this rule requires the Court to frame
and record issues where the defendant at the first hearing
of the suit makes no defence.
17. According to Order 14 Rule 1 CPC, in a suit, issue would arise
only in respect of fact or law affirmed by one party and denied by other
party. To put it in other words, fact or law pleaded by the plaintiff, and
denied by the defendant would become an issue. Therefore, if a fact or
law affirmed by one of the defendant or disputed by the other defendant
will never be an issue under Order 14 Rule 1 CPC. However, the trial
Court has framed a wrong issue in respect of validity of the sale deed
dated 15.3.1961 which is an issue inter se defendants. The plaintiff has
not at all raised this aspect in his plea. Therefore, the findings in respect
of sale deed dated 15.03.1961 is an unwarranted finding, which resulted
in filing of the cross appeal by the defendants 1 to 6, and the instant
second appeal by the defendants 7 and 8.
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18. As discussed herein above, the appellant herein as well as the
contesting respondents are sailing together in respect of the dismissal of
the partition suit. As stated supra, the issue in respect of sale deed is inter
se defendant not necessary for deciding the partition suit. As such the
issue regarding validity of sale deed has been framed in contravention to
the provision of Order 14 Rule 1 CPC. Therefore, this Court is of the firm
view that the finding of the trial Court in respect of issue No.3 is
unwarranted. Therefore, the same is liable to be set aside. If that being
the case, as concomitant, the finding recorded by the First Appellate
Court in the cross appeal is also liable to be set aside. As such, the
modified substantial question of law is answered. Hence, the second
appeal is liable to be allowed. It is made clear that both the parties are at
liberty to challenge the sale deed dated 15.03.1961 according to law.
19. In the result, this second appeal is allowed and the judgment
and decree of the Cross Appeal dated 29.11.2001 in A.S.No.70 of 1996
on the file of the Subordinate Court, Panruti is set aside. Thereby finding
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in respect of issue No.3 by the trial Court and First Appellate Court is set
aside, leaving the parties to workout their remedy separately. There shall
be no order as to costs.
08.12.2023
ssn
Index : yes/no
Speaking/Non Speaking Order
Neutral Citation Case: Yes/No
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To
1. The Subordinate Court,
Panruti.
2. The District Munsif Court,
Panruti.
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C.KUMARAPPAN, J.,
ssn
08.12.2023
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