Madras High Court
J.Savithri vs Selvaraj on 19 September, 2023
C.R.P.No.3980 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.No.3980 of 2014
1.J.Savithri
2.J.Sabarinathan ... Petitioners
Vs.
1.Selvaraj
2.Singaravelan
3.Sreenivasan
4.Kamatchi
5.Vijayalakshmi
6.Vetriselvan
7.Krishnaveni ... Respondents
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the order passed by the learned
Principal Subordinate Judge, Coimbatore, in E.A.No.24 of 2013 in
E.P.No.31 of 2014 dated 09.07.2014.
For Petitioners : Mr.S.Karthikai Balan
For Respondents : Mr.L.Mouli for RR1, 2, 4 and 5
No appearance for RR3, 6 and 7
1/8
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C.R.P.No.3980 of 2014
ORDER
I am constrained to exercise the suo motu powers under
Article 227 of Constitution of India in this case.
2. The admitted case of the plaintiff in O.S.No.899 of 1991
is that the property belonged to one Chinna Pappal. She is said to have
executed a registered Will dated 12.07.1964 bequeathing the entire
properties to her sons namely C.K.Kannuswamy Pillai and
K.Govindarajulu. On the demise of C.K.Kannuswamy Pillai, his legal
heirs and K.Govindarajulu partitioned the property by way of a
registered document dated 27.10.1988. The plaintiff would further aver
that the property obtained from a paternal grandmother should be treated
as joint family property. On that basis, the plaintiffs made a claim of 6/7
share in favour of the plaint and 1/7 share for the defendant. The suit was
decreed in and by a judgment dated 06.08.1997. The judgment reads as
follows:
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C.R.P.No.3980 of 2014
“ The suit for passing decree directing the division of the suit
property into 7 equal shares and allot the plaintiff 6 shares
out of it and put them in possession thereof and appoint a
Commissioner to effect the division of the property and
award the mesne profits from the date of suit till realisation
of the rate of Rs.500/- and for costs.
Defendant counsel report no instructions.
Defendant called absent and set exparte. P.W.1 examined.
Exs.A1 and A2 marked. Claim proved. Preliminary decree
passed with costs.”
3. A perusal of the said judgment shows that it does not comply
with the requirement of Order 20 Rule 5 of CPC. Even if the defendant
had remained ex-parte, it is the duty of the Court to give reasons for its
judgments. It is all the more necessary where the defendant has remained
ex-parte, the Court should analyse the case of the plaintiff and come to a
just conclusion.
4. It is the admitted case that the property belongs to the
paternal grandmother. The principles of Hindu Law are very clear that in
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C.R.P.No.3980 of 2014
order to claim the ancestral property, it should be only from a male
ascendant not from a female ascendant. In other words, if the property
belonged to Chinna papa's husband perhaps the claim of ancestral nature
of the property could have been urged and I would have refrained myself
from interfering only on the basis that the judgment is unreasoned
judgment. In this case, I am able to see that not only the judgment is
unreasoned but the claim of the property being an ancestral property is
made through the female line. Such a proposition is unknown to civil law.
Where a judgment is contrary to law, this Court, in the case of
Annapoorni Vs. Janaki reported in 1995 (1) LW 141, has held that the
Court has to necessarily interfere with the judgment in the exercise of the
powers of the revision and set aside the same. It is possible that the
plaintiff will have a share in the property by virtue of a partition deed
entered into in the year 1988 but that cannot be treated as a joint family
property. This fact escaped from the notice of the learned II Additional
Subordinate Judge, Coimbatore,while dealing with the suit on
06.08.1997.
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C.R.P.No.3980 of 2014
5. Mr.L.Mouli, learned counsel for the respondents would
point out that this revision arises only against the application under
Section 47 of the Code of Civil Procedure and it had been dismissed by
the trial Court without giving an opportunity to him and therefore, I have
to set aside and remand it for fresh disposal.
6. When I have found the judgment and decree itself to be
contrary to law applicable under the Hindu Succession Act and the Code
of Civil Procedure, I am not bound by this technical objection taken by
the learned counsel for the petitioner. Infact the Supreme Court in the
case of K.P.Natrajan and another Vs. Muthalamman and others
reported in 2021 (15) SCC 817 ( Per V.Ramasubramaniyan J.) has held
that during the course of dealing with a revision under Section 5 of the
Limitation Act, if it is found the decree is contrary to law, it can be
interfered with. If in a collateral proceedings, it comes to the notice of the
Court that the judgment is a contrary to law, even then the High Court,
under Article 227 of Constitution of India, is empowered to set aside the
decree.
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C.R.P.No.3980 of 2014
7. Respectfully following this judgment and applying the
principle of Hindu law to the present case, I am not in a position to
sustain the decree for partition as the same is contrary to law. No joint
family claim arises when the property claimed descends through a female.
Consequently, the judgment and decree in O.S.No.899 of 1991 dated
06.08.1997 is set aside.
8. While allowing the Civil Revision Petition in exercise of
suo motu power conferred on me since I am setting aside the decree itself,
the question of dealing with Section 47 of CPC does not arise. Therefore,
the application under Sectioon 47 of Civil Procedure Code is closed and
Civil Revision Petition is accordingly disposed off.
9. In view of the above, the suit in O.S.No.899 of 1991 is
restored to the file of the II Additional Subordinate Judge, Coimbatore.
The learned II Additional Subordinate Judge, Coimbatore is requested to
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C.R.P.No.3980 of 2014
take up the suit and dispose of the same within a period of 9 months from
the date of receipt of a copy of this order.
19.09.2023
Index:Yes/No
Speaking Order :Yes/No
Neutral Citation:Yes/No
vkr
To
The Principal Subordinate Judge, Coimbatore.
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C.R.P.No.3980 of 2014
V.LAKSHMINARAYANAN,J.
Vkr
C.R.P.No.3980 of 2014
19.09.2023
https://www.mhc.tn.gov.in/judis
