Madras High Court
Renganayagi vs N.Kandasamy on 1 March, 2024
S.A.Nos.77 & 655 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgement Reserved on 11.12.2023
Judgement Pronounced on 01.03.2024
CORAM
THE HON'BLE MRS. JUSTICE K.GOVINDARAJAN THILAKAVADI
S.A.Nos.77 & 655 of 2012
and M.P.No.1 of 2012
S.A.No.77 of 2012
Renganayagi ... Appellant/Plaintiff
Versus
1.N.Kandasamy
2.Muthuraj
3.N.Ramasamy
4.N.Vaidyanathan
5.Nagarathinam
6.N.Evernamba
7.Kasthuri
8.V.Banumathi
...Respondents
1/20
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S.A.Nos.77 & 655 of 2012
S.A.No.655 of 2012
K.Muthuraj
... Appellant/2nd defendant
1.N.Kandasamy
2.Renganayagi
3.N.Ramasamy
4.N.Vaidyanathan
5.Nagarathinam
6.N.Evernamba
7.Kasthuri
8.V.Banumathi
... Defendants
Common Prayer : These second appeals are filed under section 100 of
Code of Civil Procedure, to set aside the judgment and decree dated
31.10.2011 made in A.S.No.53 of 2009 on the file of the Principal Sub
Judge, Mayiladurai, reversing the judgment and decree dated 30.04.2009
made in O.S.No.89 of 2002 on the file of the District Munsif Court,
Sirkali and allow the second appeal.
For Appellant in
S.A.77 of 2012 : Mr.V.V.Sathya
For Appellant in
S.A.655 of 2012 : Mr.K.Muthukumarasamy
2/20
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S.A.Nos.77 & 655 of 2012
For R2 in S.A.No.77 : Mr.Muthukumarasamy
of 2012
For R2 in S.A.No.655 : Mr.V.V.Sathiya
of 2012
For RR1, R4 to R8
in both Second
Appeals : No appearance
COMMON JUDGMENT
Since the issue involved in both the second appeals, is same, this
common judgment is being delivered.
2. The appellant in S.A.No.77 of 2012 is the plaintiff in the suit
and the appellant in S.A.No.655 of 2012 is the second defendant in the
suit in O.S.No.89 of 2002 on the file of the District Munsif Court, Sirkali.
The second defendant sailed along with the plaintiff and both are claiming
1/3rd share in the suit property.
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S.A.Nos.77 & 655 of 2012
3. It is a suit for partition and separate possession claiming 1/3 rd
shares in the suit properties by the plaintiff.
For the sake of convenience, parties are referred to, as they
are ranked before the trial Court.
4. Averments made in the plaint, in brief, are as follows:
The suit property belonged ancestrally to one Neelayadakshi,
wife of Subramanian Chettiar, having been obtained under a registered
settlement deed dated 22.07.1959. The above said Subramanian Chettiar
executed the settlement deed out of his own free will and consent and
attested by witnesses. The said settlement came into force on 22.07.1959
itself. As per the settlement deed, Neelayadakshi took possession of the
property settled on her and ever since then, she was in possession of the
same till her death. Even before her death, her minor son also died. After
her death, the plaintiff and defendants 1 & 2 are each entitled to the
properties 1/3 share, as they are the legal heirs of deceased
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S.A.Nos.77 & 655 of 2012
Neelayadakshi. Kandasamy Chettiar S/o late Narayanasamy, the 1st
defendant had 3 daughters namely (1) Muthulakshmi, (2) Neelayadakshi
(died interstate) and (3) Maruthambal. The said Muthulakshmi died,
leaving only her grand son, by name Muthuraj, the 2 nd defendant herein.
Maruthambal died leaving her only daughter Renganayaki, the plaintiff
herein and they are the legal heirs of Neelayadakshi and they are entitled
to get 1/3 share the suit properly.
5. The Plaintiff has also issued a legal notice to the first
defendant on 13.03.98 demanding for her 1/3 share. But he refused and
notice was also issued to the District Collector of Nagapattinam District,
Revenue Divisional Officer, Mayiladuthurai and the Tahsildar, Porayar,
not to alienate the suit property. The first defendant as if, he is the only
owner of the suit property, got the compensation amount under the
acquisition proceedings for Samathuvapuram project. The first defendant
gave a false reply and the officials also gave a reply and they are filed
before the trial Court. The Plaintiff and defendants are deemed to be in
joint possession of the suit property. Since the properties are not
partitioned, the plaintiff claims 1/3 share and separate possession as legal
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S.A.Nos.77 & 655 of 2012
heir of the deceased Neelayadakshi Ammal.
6. The case of the 1st defendant as per the written statement in
brief is as follows:
The suit property is not available for partition. The suit for
partition filed after 50 years, is not maintainable against the 1st defendant.
It is false to state that Neelayadakshi Ammal, wife of Subramanian
Chettiar purchased the suit property for due consideration. The suit
property is in the 1st defendant's possession and enjoyment for the past
50 years i.e., from the year 1948 onwards. The 1st defendant is in
possession and enjoyment of the property continuously without any
interruption openly and paying the kist and other taxes to Government.
The Government records and other transactions stands in the name of 1st
defendant for past 50 years. The Patta stands in the name of the 1st
defendant. The plaintiff also accepted that the 1st defendant's title and
possession in the suit property is open, continuous for the past 50 years.
For the past 50 years, the plaintiff never claimed any right or title to the
suit property. The 1st defendant treated the suit property as his own
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S.A.Nos.77 & 655 of 2012
property for the past 50 years. The 1st defendant's possession and
enjoyment of the suit property is well known to his relatives and
particularly, to the plaintiff from 1948. The 1st defendant treated the suit
property as of his own and many transactions have taken place regarding
the properties. No other person can claim any right in the suit property.
The suit had been field only for unlawful enrichment and it is a vexatious
suit. This defendant made improvements in the suit property for the past
50 years, spending huge amount and developed the suit property. Till
today nobody had questioned the title of the property to this defendant.
The 1st defendant perfected title in the suit property by ouster. The suit is
bad for non-joinder of necessary parties. In a suit for partition, all
necessary parties should be added compulsorily and this defendant had
already sold the suit property. The plaintiff is not entitled to any share in
the suit property. The plaintiff and defendant are separated long before
and there is no relationship with regard to the property. The court fee paid
is not correct. The suit for partition may be dismissed with costs.
7. The case of the 4th defendant, as averred in the written
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S.A.Nos.77 & 655 of 2012
statement reads as follows:
The first defendant already perfected title by ouster and even if any
right the plaintiff had, has been lost by long period of fifty years of
enjoyment and possession by first defendant. The 4th defendant purchased
the suit property for valid consideration through registered sale deed dated
09.06.1995. After sale, the plaintiff and others are not entitled to any
share as claimed. The sale dated 09.06.1995 was duly executed, attested
and registered as documents in the eye of law. This defendant is a bona-
fide purchaser for value from his father. The plaintiff is not in India and
had been settled in Australia. The Plaintiff never claimed any interest over
the suit property for the past fifty years. The genealogy table is wrong and
it has nothing to do with the suit or suit property. The first defendant, by
long enjoyment and possession for more than fifty years, by adverse
possession, also perfected title and had become title holder of the suit
property and sold the above said property to this 4th defendant for valid
consideration. The suit for partition is not maintainable at this stage. This
defendant therefore prays that this Court may dismiss the suit with
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S.A.Nos.77 & 655 of 2012
costs.
8. The case of the 2nd defendant, has averred in the written
statement reads as follows:
The suit property is the absolute property of late Neelayadakshi.
The plaintiff's and the defendants 1 & 2 are the legal heirs of the said
Neelayadakshi. Hence, the plaintiffs and the defendants 1 & 2 are entitled
to 1/3rd share in the suit property. It is further submitted that the 1st
defendant is in possession of the suit property on behalf of the plaintiffs
and the 2nd defendant also received the share in the agricultural produce
derived from the suit property and only for the past 5 years, the 1st
defendant failed to share the income from the agricultural lands. Hence,
the 2nd defendant submitted that the suit property shall be divided into
three shares and one such share may be alloted to the 2 nd defendant.
Based on the above averments, the trial Court framed the necessary issues
and tried the suit.
9. The trial Court has framed the following issues:
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S.A.Nos.77 & 655 of 2012
nkw;fz;l tHf;Fiu. vjph;tHf;Fiufs;. TLjy;
vjph;tHf;Fiuia ghprPyid bra;J fPHf; f; z;l
vGtpdhf;fs; kw;Wk; TLjy; vGtpdhf;fs; jPht
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mUfija[ilatuh?
2/ jhthr; brhj;jpd; chpik Kjy; gpujpthjpf;F clik
ePff; j;jpwd; mog;gilapy; rpj;jpj;J tpl;ljh?
3/ jhthr; brhj;jpid Kjy; gpujpthjp Vw;fdnt 3Mk;
jug;gpdUf;F tpwfpuak; bra;Js;sjhy;. ,e;j tHf;f
mtrpakhd jug;gpdiur; nrh;ff; j;jtwpa Fiwf;F
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bghUkhdk; rhpahf kjpg;gplg;gl;Ls;sjh?
5/ thjpf;F vd;d ghpfhuk; fpilf;ff;ToaJ?
TLjy; vGtpdhf;fs;
1/ jhthr; brhj;jpid 4Mk; gpujpthjp mwptpg;g[
,y;yhky; fpuak; bgw;w ey;y vz;zj;jpy;
mog;gilapyhd fpuajhuuh?
2/ ntW vd;d ghpfhuk?;
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S.A.Nos.77 & 655 of 2012
8/ thjp jug;gpy; th/rh/1. th/rh/2. tprhhpf;fg;gl;ldh;/
th/rh/M 1 Kjy; th/rh/M5 Fwpg;gplg;gl;ld/
gpujpthjpfs; jug;gpy; gp/rh/1 Kjy; gp/rh/4 Fwpaplg;gl;lJ/
gp/rh/M1 Kjy; gp/rh/M8 Fwpaplg;gl;ld?
10. Before the trial Court, the trial Court examined P.W.1 and
marked as Ex.A1 to A.5. On the side of the defendants D.W.1 to D.W.4
were examined and Ex.B.1 to B.8 were marked. The trial Court decreed
the suit and allotted 1/3 share to the plaintiff. Aggrieved by this, the
defendants have preferred the appeal in A.S.No.89/2002 on the file of the
Principal Sub Court, Mayiladhurai, and by judgment and decree dated
31.10.2011, the learned Principal Sub Judge, Mayiladhurai, allowed the
appeal by setting aside the decree and judgment passed by the trial Court.
11. Aggrieved by the same, the plaintiff is before this Court with
the present second appeal.
12. When the second appeals are taken up for admission, this
Court has formulated the following substantial questions of law.
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S.A.Nos.77 & 655 of 2012
a. When the plaintiff specifically pleaded that the
son of Neelayadakshi pre-deceased her and this fact
was not denied by the first defendant and the fourth
defendant in the written statement and no issue was
framed in this regard, whether the 1st Appellate
Court was right in taking up this issue even without
framing it as a point for consideration under Order
41 Rule 31 of Cpc by relying upon Ex.B2
proceedings in which neither the plaintiff nor
the second defendant were parties?
b. Whether the 1st Appellate Court was right
in reversing the judgment of the Trial Court on an
issue which was not even putforth before the trial
Court by the first and fourth defendants?
c. Whether the reversing judgment of the 1 st
Appellate Court is not vitiated by its failure to
consider the pleadings of the parties, evidence and
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S.A.Nos.77 & 655 of 2012
apply the correct principles of law?
d.Whether the 1st Appellate Court is right in
law in holding that the 1st defendant alone inherited
the property of the deceased Neelayadakshi under
Clause II Entry IX of Section 8 of Hindu Succession
Act, 1956, merely based on Ex.B.2 which was not at
all pleaded by the parties?
e.Whether the 1st Appellate Court is right in
law in non suiting the plaintiff and the 2nd defendant
basedon Ex.B.2 (judgment in O.S.No.27/2002,
District Court, Nagapattinam) to which admittedly
they are not parties?
13. Mr.V.V.Sathya, learned counsel appearing for the
appellant in S.A.No.77 of 2012 and Mr.K.Muthukumarasamy, learned
counsel appearing for the appellant in S.A.No.655 of 2012 contended
that the 1st appellate Court failed to take note of the fact that even the
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S.A.Nos.77 & 655 of 2012
contesting 1st defendant did not state in the written statement that the
deceased Neelayadakshi had a son who died in the year 1964. Hence,
casual finding in Ex.B.2 to which the plaintiffs and the 2 nd defendant were
not parties, cannot be a ground for non- suiting the plaintiffs and the 2nd
defendant.
14. The 1st defendant claimed right of ownership independently
and did not admit that he inherited the property through the deceased
Neelayadakshi Ammal and even in the sale deed Ex,B.1 in favour of the
4th defendant, it has been shown as acquisition of the 1 st defendant.
Hence, the reliance placed on Ex.B.2 by the 1st appellate Court to non-suit
the plaintiff and the 2nd defendant is perverse and unsustainable in law. He
further submitted that the deceased Neelayadakshi obtained the suit
property under a settlement deed (Ex.A.1). At the time of her death in
1962, the 1st defendant and the mother of the plaintiff, Mathurammal and
another sister Muthulakshmi were alive. Hence, the plaintiff became
entitled to 1/3rd share in the suit property after the death of Mathurammal
who died intestate. Similarly, sharer of Muthulakshmi on whom 1/3rd
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S.A.Nos.77 & 655 of 2012
share was derived by intestate succession, the 2 nd defendant is entitled to
1/3rd share in the suit property. Such findings of the trial Court were
reversed by the lower Appellate Court. But the 1 st appellate Court only
placed reliance on Ex.B.2, when there was no pleading to that effect. The
plaintiff and the 2nd defendant were not made as parties to the above suit.
Hence, the findings of the 1st appellate Court in this regard are wholly
unsustainable in law. It is further submitted that there is no rebuttable
statement made in the written statement to the plaint averment that the
minor son of Meenakshi died even before her death and therefore,
findings of the lower appellate Court dismissing the suit is totally
unsustainable. The 1st appellate Court erred in holding that the 1st
defendant became entitled to the suit property as per Clause 2 and 3(9) in
the schedule to Section 8 of the Hindu Succession Act, 1956. Moreover,
the trial court has rightly held that when the plaintiff and 2nd defendant are
entitled to 1/3rd share each, the sale deed Ex.B.1 executed in favour the 4 th
defendant by the deceased 1st defendant Narayanasamy, is not valid in law
and not binding on the co-sharers. Hence, the 1st appellate Court erred in
reversing the findings of the trial Court. Therefore, it is prayed that the
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S.A.Nos.77 & 655 of 2012
judgment and decreed dated 31.10.2011 made in A.S.No.53/2009 on the
file of the learned Principal Sub Court, Myladurai, reversing the judgment
and decree dated 30.04.2009 made in O.S.No.89 of 2009 on the file of the
District Munsif Court, Seerkazhi, is liable to be set aside.
15. On the other hand, the learned counsel appearing for the
respondents would submit that the first Appellate Court based on Ex.B.2
has rightly held that the 1st defendant is entitled to the suit property as per
Clause 2 and 3(9) in the Scheduel to Section 8 of the Hindu Succession
Act, 1956 and thereby, dismissed the suit which calls for no interference.
16. Heard on both sides and records perused.
17. The plaintiff has specifically pleaded that the son of
Neelayadakshi pre-deceased her. However, this fact was not denied by the
1st defendant and the 4th defendant in the written statement. Hence, the
trial Court had also not framed any issue in this regard. According to the
plaintiff, the said Neelayadaskshi was the absolute owner of the property
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S.A.Nos.77 & 655 of 2012
and both her son and her husband predeceased her and by virtue of the
same, the plaintiff and the defendants are entitled to inherit the property
of Neelayadakshi under Section 15 and Clause 1 (d) & (e) of the Hindu
Succession Act, 1956. The defendants 1 & 4 failed to deny the above facts
in their pleadings, and the trial Court had no occasion to frame an issue
in this regard. As per Order 14 Rule 1 of CPC, only on material facts
stated by one party and denied by the other, issues can be framed. Since
there was no denial of the material facts, it must be taken to have been
admitted by the defendants in accordance with Order 8 Rule 3 of CPC.
While so, the 1st appellate Court is not right in taking up this issue, even
without framing a point for consideration under Order 41 of Rule 31 of
CPC by relying upon Ex.B.2, which was the suit filed in O.S.No. 87 of
2004 by the 3rd defendant, in which a stand has been taken that said
Neelayadakshi died in the year 1962 and her son Ganapathy died in the
year 1964. The 1st appellate Court allowed the appeal only on the ground
that the plaintiff failed to prove that the son of Neelayadakshi namely
Ganapathy pre-deceased his mother. Moreover, in the above suit neither
the plaintiff nor the 2nd defendant were made as party. While so, the 1 st
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S.A.Nos.77 & 655 of 2012
appellate Court has misdirected itself that her son died only after
Neelayadakshi died by relying upon Ex.B.2. Moreover, the 1 st appellate
Court being the last court of fact, ought to have taken additional evidence
under Order 41 Rule 27 of CPC with regard to proof of the death of the
said Ganapathy, whether he pre-deceased his mother or died after his
mother Neelayadakshi and taking additional evidence, the 1 st appellate
Court ought to have framed points for determination in this regard by
giving reasons as to why, without any additional evidence, with regard to
the death of Ganapathy son, of Neelayadakshi, whether he predeceased
his mother or died in the year 1964 as mentioned in O.S.No.87 of 2004
and without framing any point for determination in this regard, the 1st
appellate Court erred in giving finding on an issue which was not
projected by the parties to the proceedings. But from fact, neither the 1 st
defendant, nor the 4th defendant denied the factum stated in the plaint that
the son of Neelayadakshi namely Ganapathy predeceased his mother.
Hence, the findings of the first Appellate Court require interference.
Therefore, the findings of the first Appellate Court that the 1st defendant
alone can inherit the property of deceased Neelayadakshi under Clause 2
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and 3 (9) of Section 8 of Hindu Succession Act, 1956, based on Ex.B.2,
is non-suiting the plaintiff and the 2nd defendant is unsustainable.
Accordingly, these substantial questions of law are answered.
18. In the result, both the Second Appeals are allowed and the
judgement and decree passed by the learned Principal Sub Judge,
Myladurai, in A.S.No.53 of 2009 dated 31.10.2011 is hereby set aside
and the judgement and decree of the trial Court is restored. Consequently,
connected miscellaneous petition is closed. No costs.
01. 03.2024
mkn2/vsn
Index:Yes/No
Speaking Order : Yes/No
To
The Principal Sub Judge,
Myladuthurai
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S.A.Nos.77 & 655 of 2012
K.GOVINDARAJAN THILAKAVADI,J.
mkn2/vsn
PRE- DELIVERY COMMON JUDGEMENT MADE IN
S.A.Nos.77 & 655 of 2012
01.03.2024
https://www.mhc.tn.gov.in/judis
