Madras High Court
Subramanian vs Kasinathan (Died) on 1 April, 2024
S.A.No.779 of 2000
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED: 01.04.2024
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.No.779 of 2000
1.Subramanian
2.R.Anguchamy
3.Pappa ... Appellants
Vs
Kasinathan (Died)
2.Meenal
3.Thenmozhi (Died)
4.A.Manjula ...
Respondents
(Respondents 2 and 3 are brought on record as LRs of the deceased
sole respondent vide Court order dated 19.01.2023 in M.P.(MD)Nos.1
to 3 of 2009)
(Respondent 4 is also brought on record as LR of the deceased sole
respondent vide Court order dated 22.06.2023 made in C.M.P.(MD)No.
1258 of 2023)
(R3 died and R4, who is already on record is recorded as LR of the
deceased R3 vide Court order dated 11.01.2024 made in S.A.No.779 of
2000)
(The order dated 11.01.2024 is recalled, and memo dated 01.04.2024
presented before the Court on 01.04.2024 is recorded to the effect that
R3 died and R2, who is already on record is recorded as LR of the
deceased R3 vide Court order dated 01.04.2024 made in S.A.No.779 of
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1/13
S.A.No.779 of 2000
2000)
PRAYER: Second Appeal filed under Section 100 of C.P.C. read with
Order XLI Rule 1 of C.P.C. against the judgment and decree in A.S.No.
80 of 1998 dated 10.11.1999 on the file of the Principal District Judge,
Ramanathapuram, reversing the judgment and decree dated 27.02.1998
in O.S.No.298 of 1994 on the file of the District Munsiff, Paramakudi.
For Appellants : Mr.M.Thirunavukkarasu
For Respondents : Mr.D.Senthil for R2
No Appearance for R4
R1 & R3 died.
JUDGMENT
The defendants are the appellants. The deceased first respondent
filed a suit for declaration of title and injunction in respect of suit items 1
and 2, with alternative prayer for recovery of possession in respect of
item 2. The suit was dismissed by the trial Court. The first appeal filed
by the deceased first respondent Kasinathan/plaintiff was allowed by the
first appellate Court, by granting a declaration that said Kasinathan was
co-owner of the suit property and for consequential injunction in respect
of first item of the suit property. In respect of second item, the first
appellate Court granted a decree for limited declaration as mentioned
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above and recovery of possession. Aggrieved by the said judgment and
decree, the defendants have come by way of this Second Appeal.
2. According to the respondents/plaintiffs, the suit property
originally belonged to plaintiff's paternal grandfather Vellaisamy Konar
and he died even before coming into force of “The Hindu Succession
Act, 1956” [hereinafter referred to as “the 1956 Act” for the sake of
convenience]. The said Vellaisamy Konar had one son, Nagarathina
Konar, father of the plaintiff and two daughters viz., Ramayee and
Alagammal. Since Vellaisamy Konar died prior to coming into force of
the 1956 Act, on his death, the plaintiff's father Nagarathina Konar
acquired Vellaisamy Konar's share in the suit property by way of
survivorship. Thus, he became owner of entire suit property. The said
Nagarathina Konar left the house 10 years back and his whereabouts was
not known and hence, claiming that his absence shall be treated as civil
death, the first respondent Kasinathan laid a suit for declaration of title
and other consequential relief.
3. The suit was resisted by the appellants herein by specifically
denying the averments found in the plaint, as if Vellaisamy Konar died
prior to coming into force of the 1956 Act. It was the specific case of the
appellants that Vellaisamy Konar died subsequent to coming into force of
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the 1956 Act and hence, on his death, the sisters of Nagarathina Konar
viz., Ramayee and Alagammal, mother of appellants 1 and 2, were also
succeeded to the suit property. It was also pleaded by the appellants that
there was a partition after the death of Vellaisamy Konar and the southern
portion of the suit property was allotted to the share of Alagammal and
northern portion of the suit property was allotted to the share of
Ramayee, mother of Subramanian. It was also pleaded that Ramayee
gave up her right in the northern portion of the suit property in favour of
Alagammal and she put up a house thereon and had been residing. It was
also claimed that the house that was in existence of the suit property got
dilapidated and the suit property had been in possession and enjoyment
of the appellants. The appellants also denied the plea raised by the
respondents /plaintiffs, as if the mother of the second appellant
Alagammal was permitted to occupy the suit property by father of the
plaintiff. On these pleadings, the appellants sought for dismissal of the
suit.
4. The trial Court, on appreciation of oral and documentary
evidence came to the conclusion that the respondents/plaintiffs failed to
prove their plea that Vellaisamy Konar died prior to the 1956 Act and
hence, mother of the appellants 1 and 2 were also entitled to a share in
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the suit property and consequently, dismissed the suit. Aggrieved by the
same, the first respondent/plaintiff preferred an appeal in A.S.No.80 of
1998 on the file of Principal District Court, Ramanathapuram. The first
appellate Court reversed the finding of the trial Court and came to a
conclusion that the respondents proved that Vellaisamy Konar died prior
to the 1956 Act and consequently, the father of deceased first respondent
Nagarathina Konar entitled to the entire suit property. The first appellate
Court also came to a conclusion that even assuming the death of
Nagarathina Konar was not proved by the respondents/plaintiffs, as a son
of Nagarathina Konar, the deceased first respondent/plaintiff entitled to
be declared as a co-owner of the property and for consequential reliefs.
Aggrieved by the said findings rendered by the first appellate Court, the
appellants/defendants are before this Court.
5. At the time of admission, this Court formulated the following
substantial questions of law, by an order dated 15.10.2003:
“1.Whether the Lower Appellate Court was correct in
placing the burden of proof with regard to the date of death
of Vellaisamy Konar on the defendants?
2.Whether the Lower Appellate Court was correct in
presuming that the father of the plaintiff Nagarathina Konar
was dead when the plaintiff himself had admitted in chief
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examination that he was alive?
3.Whether the Lower Appellate Court was correct in
placing the burden of proof with regard to the death or
otherwise of Nagarathian Konar on the defendants?
4.Whether the claim of the plaintiff is tenable in the
light of Exhibits B.2 to B.25?
5.Whether the finding of the Lower Appellate Court
that the defendants are trespassers is sustainable when no
such plea has been raised by the plaintiff?
6.Whether the plaintiff has succeeded to the suit
property by survivorship?”
6. The learned counsel appearing for the appellants submitted that
the first respondent as a plaintiff failed to prove the specific plea that the
original owner Vellaisamy Konar died prior to the 1956 Act. The first
appellate Court wrongly shifted the burden on the defendants to prove
that Vellaisamy Konar died subsequent to the coming into force of the
1956 Act. Therefore, the finding rendered by the first appellate Court
with regard to the date of death of Vellaisamy Konar is unsustainable.
The learned counsel further submitted that the appellants by producing
various revenue documents, which were marked as Ex.B2 to Ex.B25
proved their possession over the suit property and hence, the first
appellate Court ought not to have treated them as trespassers.
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7. The learned counsel appearing for the respondents by taking this
Court to the evidence of D.W.1 and D.W.2, submitted that the finding
rendered by the first appellate Court with regard to the date of death of
Vellaisamy Konar was based on the admission of appellants' witnesses
and hence, the said finding of fact need not be interfered with.
Answer to substantial questions of law Nos.1 and 6:
8. It is the specific case of the respondents/plaintiffs that original
admitted owner of the property viz., Vellaisamy Konar died prior to
coming into force of the 1956 Act and the same has been stoutly denied
by the appellants/defendants in the written statement. The first appellate
Court, based on the admissions made by D.W.1 and D.W.2, came to the
conclusion that Vellaisamy Konar died prior to 1956.
9. D.W.1, during the course of cross examination admitted that he
was three years old, when Vellaisamy Konar died. The age of D.W.1 was
shown as 47, when he was examined on 23.06.1997. Therefore, he
should have born in the year 1950. If it is accepted that Vellaisamy
Konar died when D.W.1 was three years old, he should have died in the
year 1953. The relevant portion of D.W.1's evidence reads as follows:
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“nts;isr;rhkp Nfhdhh; ehd; gpwe;jjw;F gpd;dhy;
jhd; ,we;jhh;. mq;Fr;rhkpf; Nfhdhiu vdf;F njhpAk;.
vdf;F 3 tajhfpapUf;Fk;NghJ nts;isr;rhkp
Nfhdhh; ,we;Jtpl;lhh;. mq;Fr;rhkp Nfhdhh; ,wf;Fk;NghJ
ehfnuj;jpdf;NfhdhUf;F 45 taJ ,Uf;Fk;.
nts;isr;hkpNfhdhh; jhthf;fpuhkj;jpy; jhd; ,we;jhh;.
nts;isr;rhkp Nfhdhh; mth; kfd; ehfnuj;jpdj;jpw;Fk;
ghfk; VJk; Vw;gltpy;iy.”
10. A perusal of the vernacular extract of D.W.1's evidence would
indicate that Vellaisamy Konar died when he was three years old. Taking
into consideration the age of D.W.1, given as 47 at the time of
examination, the first appellate Court rightly came to the conclusion that
Vellaisamy Konar should have died around 1953.
11. The above said admission of D.W.1 was very well corroborated
by the admission of D.W.2 in his cross examination. The relevant
portion of D.W.2's evidence reads as follows:
“nts;isr;rhkp Nfhdhiu vdf;F njhpAk;.
nts;isr;rhkp Nfhdhh; ,wf;Fk;NghJ vdf;F 10 my;yJ
12 taJ ,Uf;Fk;.”
12. A perusal of the above evidence of D.W.2 would indicate that
Vellaisamy Konar died when D.W.2 was aged about 10 or 12. The age of
D.W.2 was mentioned as 55 years on the date of examination
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[11.08.1997]. Therefore, he should have born in the year 1942. If 12
years is added to 1942, then Vellaisamy Konar should have died in the
year 1954. Therefore, the finding rendered by the first appellate Court
that Vellaisamy Konar died prior to coming into force of the 1956 Act is
based on admissions of D.W.1 and D.W.2 and there is no perversity in the
said finding rendered by the first appellate Court. Therefore, the
questions of law Nos.1 and 6 are answered against the appellants and in
favour of the respondents.
Answer to substantial questions of law Nos.2, 3, 4 and 5:
13. Once this Court has come to the conclusion that Vellaisamy
Konar died prior to the 1956 Act, his daughters viz., mothers of
appellants 1 and 2, Ramayee and Alagammal cannot claim any share in
the suit property. On the death of Vellaisamy Konar, his share in the
property will go into his only son Nagarathina Konar by survivorship.
The deceased first respondent is the son of said Nagarathina Konar. The
plaintiff examined himself as P.W.1 and he asserted that Nagarathina
Konar has not been heard for more than 10 years. The first appellate
Court had noted that in chief examination in one sentence P.W.1 deposed
as if Nagarathian Konar was alive but in next sentence he asserted that he
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has not been seen for the past ten years. Hence, as per golden rule of
evidence, after weighing entire evidence of P.W.1 as a whole, first
appellate Court came to a conclusion that P.W.1 asserted that Nagarathian
Konar has not been heard for the past 10 years. There is no contra
evidence on record to suggest that Nagarathina Konar was heard by
anybody, who was expected to know about the whereabouts within 7
years immediately preceding the presentation of plaint. Therefore, the
civil death of Nagarathina Konar can be safely presumed.
14. In that case, the first respondent is entitled to declaration of
title to the suit property as prayed for. Even assuming that Nagarathina
Konar's death is not proved, as a son of Nagarathina Konar, the deceased
first respondent/plaintiff is entitled to a share in the suit property, as the
suit property is admittedly ancestral in character. Therefore, the deceased
first respondent is entitled to a declaration that he is a co-owner of the
suit property along with Nagarathina Konar and his daughters.
Therefore, the first appellate Court instead of granting a declaration of
absolute title, granted a lesser relief of declaration that first respondent /
plaintiff was co-owner of the suit property. Even if, Nagarathina Konar
is alive, co-ownership of 1st respondent by virtue of birth cannot be
denied. Hence, the said finding requires no interference from this Court.
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The appellants/defendants produced the revenue documents to show their
possession over the suit 2nd schedule property. It is settled law, revenue
documents are not documents of title and it can be pressed into service
only for the purpose of possession over the suit property. Even as per the
admitted case of the first respondent/plaintiff, the second appellant's
mother Alagammal was allowed to occupy the southern portion of the
suit property, by putting up a superstructure and therefore, the revenue
documents produced by the appellants, to prove their possession, would
not advance their case in any way. The respondents established their
right over the suit property. The appellants are unable to establish their
right over the suit property. In such circumstances, the first appellate
Court rightly treated them as trespassers and granted a decree for
recovery of possession in respect of item 2 of the suit property.
Accordingly, the questions of law Nos.2, 3, 4 and 5 are answered against
the appellants and in favour of the respondents.
15. In view of the conclusion reached by this Court in questions of
law Nos.1 to 6, I do not find any thing to interfere with the judgment and
decree passed by the appellate Court and accordingly, the Second Appeal
stands dismissed. There shall be no order as to costs.
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01.04.2024
NCC : Yes / No
Index : Yes / No
vsm
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S.SOUNTHAR, J.
vsm
To
1.The Principal District Judge, Ramanathapuram.
2.The District Munsiff, Paramakudi.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
01.04.2024
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