Madras High Court
Subramaniyan vs Savithiri (Died) on 19 October, 2024
2024:MHC:3630
S.A.NO.415 OF 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.10.2024
CORAM:
THE HON'BLE MR.JUSTICE R.SAKTHIVEL
S.A.NO.415 OF 2018
AND CMP NO.11442 OF 2018
1.Subramaniyan
S/o. Venkatasamy Reddiar
2.Krishnamurthi (Died)
3.K.Vanaja
4.V.Sharmila
5.S.Rajalakshmi
(2nd Appellant died. Appellants 3 to 5
brought on record as LRs of the
deceased 2nd appellant viz.,
Krishnamurthy vide Court Order
dated 27.03.2024 in CMP Nos.4925
4928 and 4929 of 2023 in
S.A.No.415 of 2018) ... Appellants /
Respondents/
Defendants
Versus
Savithiri (Died)
2.A.Rajesh Kanna ... Respondent /
Appellant /
(R2 brought on record as LR of the Plaintiff
deceased sole respondent viz., Savithiri
vide Court order dated 27.03.2024 made
in CMP Nos.4993, 4994 and 4996 of
2023 in S.A.No.415 of 2018)
PRAYER: Second Appeal filed under Section 100 of Civil Procedure
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S.A.NO.415 OF 2018
Code, 1908 against the Judgment and Decree dated December 6, 2017
made in A.S.No.19 of 2016 on the file of the Sessions Judge, Magila
Court, Cuddalore, reversing the Judgment and Decree dated February 2,
2016 in O.S.No.197 of 2012 on the file of the Principal Sub Judge at
Cuddalore.
For Appellants : Mr.N.Suresh
For Respondent-1 : Died
For Respondent-2 : Mr.N.Palanikumar
JUDGMENT
This Second Appeal is directed by the unsuccessful
defendants before the First Appellate Court, assailing the Judgment and
Decree dated December 6, 2017 made in A.S.No.19 of 2016 on the file of
‘Additional District Court (Mahila Court), Cuddalore’ ['First Appellate
Court' for short], whereby the Judgment and Decree dated February 2,
2016 made in O.S.No.197 of 2012 on the file of ‘Principal Sub Court,
Cuddalore’ ['Trial Court' for short] was reversed.
2. Hereinafter, for the sake of convenience, the parties will be
referred to as per their array before the Trial Court.
Plaintiff’s Case in Brief:
3. Suit Properties were self-acquired properties of
Venkatasamy Reddiar, who passed away on April 18, 1998 leaving behind
the plaintiff and the defendants as his legal heirs. The plaintiff is the sister
of both defendants. After the demise of Venkatasamy Reddiar, the
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defendants are in possession and enjoyment of the Suit Properties.
Defendants were giving 1/3 share in the income from Suit Properties to
plaintiff regularly till the year 2010. Thereafter, the defendants failed to
pay her 1/3rd share in income, in spite of repeated demands. Hence, the
plaintiff caused Notice dated June 30, 2012 to the defendants claiming her
1/3 share in the Suit Properties. On receipt of the Notice, the defendants
issued Reply dated September 1, 2012 containing false allegations. Hence,
the Suit for partition and separate possession of 1/3 share in the Suit
Properties as well as for rendition of accounts.
Defendant’s Case in Brief:
4. The second defendant filed Written Statement. The first
defendant adopted the same. The defendants admit that the Suit Properties
were self-acquired properties of Venkatasamy Reddiar. They also admit
the date of demise of Venkatasamy Reddiar, the relationship between the
plaintiff and the defendants, as well as the defendants’ possession and
enjoyment of the Suit Properties. The defendants deny that the defendants
used to give 1/3 share of income from the Suit property to plaintiff.
4.1. According to the defendants, the plaintiff was never
given any share either by the defendants or by Venkatasamy Reddiar. The
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plaintiff was married off to one Aadhi Narayanan as second wife. On
demand from the plaintiff and the said Aadhi Narayanan before their
marriage, father - Venkatasamy Reddiar purchased certain properties
situate in Malaiperumal Agaram Village at Cuddalore District, in the name
of the plaintiff and Nagalakshmi, who is the first wife of the said Aadhi
Narayanan, for the welfare of the plaintiff. There occurred a marital
discord in 1972 and the plaintiff has been living estrange from the said
Aadhi Narayanan since then. Father’s efforts to resolve the marital discord
went in vein and therefore, father - Venkatasamy Reddiar restrained the
plaintiff from visiting the father’s house and excluded her from enjoying
the Suit Properties. Venkatasamy Reddiar never intended to give any share
to the plaintiff in the Suit Properties since he had already purchased
certain properties in the plaintiff’s name before her marriage as already
alluded to supra. Even after the demise of Venkatasamy Reddiar, the
plaintiff was excluded from enjoying the Suit Properties.
4.2. First defendant is issueless and has already released his
share in the Suit Properties in favour of the second defendant. Ever since
the demise of Venkatasamy Reddiar, the second defendant is in exclusive
possession and enjoyment of the Suit Properties, for more than the
statutory period by ousting and excluding the plaintiff in a continuous and
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open manner without any interruption from anyone including the plaintiff.
Hence, the plaintiff has lost her right, if any, over the Suit Properties. The
Suit is barred by limitation. The Court Fee paid by the plaintiff under
Section 37 (2) of the ‘Tamil Nadu Court-Fee and Suits Valuation Act,
1955’ ['TNCF Act' for short] is incorrect as she is not in joint possession
and enjoyment of the Suit Properties; the plaintiff ought to have valued the
Suit under Section 37 (1) of the TNCF Act. Hence, the Suit is liable to be
dismissed.
Trial Court
5. The parties went to trial on these pleadings. The Trial Court
framed the following Issues:
“(1) Whether the plaintiff is entitled to 1/3 share in the Suit
Properties?
(2) Whether the valuation of the Suit under Section 37 (2) of the
Tamil Nadu Court Fees Act is correct?
(3) Whether the plaintiff is entitled to the relief of partition and
mesne profits?”
6. Trial commenced and on the side of the plaintiff, the
plaintiff was examined as P.W.1 and Ex-A.1 to Ex-A.16 were marked. On
the side of the defendants, the second defendant was examined as D.W.1,
plaintiff’s husband - Aadhi Narayanan was examined as D.W.2, and Ex-
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B.1 to Ex-B.5 were marked.
7. The Trial Court upon hearing either side and analysing the
evidence available on record, concluded that the Suit Properties are self-
acquired properties of Venkatasamy Reddiar and after his demise, the
plaintiff is entitled to 1/3 share therein as per Section 8 of the ‘Hindu
Succession Act’, 1956 ['H.S.Act' for short] and thus, answered Issue No.1
in favour of the plaintiff.
7.1. As regards Issue No.2, the Trial Court concluded that the
plaintiff is not in joint possession and enjoyment of the Suit Properties
from the year 1974 and therefore, the Plaint must have been valued under
Section 37 (1) of TNCF Act. Further held that, in the absence of specific
proof, the Court cannot suo moto presume that the plaintiff was receiving
her share in the income from the Suit Properties till the year 2010. Hence,
the Court fee paid under Section 37 (2) of TNCF Act is incorrect.
Accordingly, Issue No. 2 was answered in favour of the defendants.
7.2. As regards Issue No.3, the Trial Court held that though
the plaintiff is entitled to 1/3 share in the Suit Properties, she is not entitled
to the relief of partition, for the reason that she has foisted a false case
before the Trial Court.
7.3. On the above findings, the Trial Court dismissed the Suit
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without costs.
First Appellate Court
8. Dissatisfied with the Judgment and Decree of the Trial
Court, the plaintiff preferred the appeal in A.S.No.19 of 2016 before the
First Appellate Court. The First Appellate Court after hearing either side
and perusing the records, concluded that Ex-A.9 - ‘A’ Register stands in
the name of Venkatasamy Reddiar and the defendants have not established
that they are in possession and enjoyment of the Suit Properties for more
than 12 years excluding the plaintiff. The very moment Venkatasamy
Reddiar passed away, the Suit Properties devolved upon the plaintiff and
the defendants as per Section 8 of the H.S.Act and thus, as co-heirs and
co-owners, they are entitled to equal share in the Suit Properties. The
plaintiff in the Plaint as well as in her evidence has categorically stated
that the plaintiff was in joint possession and enjoyment of the Suit
Properties along with the defendants by receiving her share in the income
therefrom until 2010. In these circumstances, the Trial Court ought to have
decided that the plaintiff is in joint possession and enjoyment of the Suit
Properties along with the defendants and that the Court Fee paid under
Section 37 (2) of TNCF Act is correct. Accordingly, the First Appellate
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Court allowed the appeal, set aside the Judgment and Decree of the Trial
Court and decreed the Suit as prayed for without costs.
Second Appeal
9. Feeling aggrieved by the Judgment and Decree of the First
Appellate Court, the defendants preferred this Second Appeal. During the
pendency of the Second Appeal, the plaintiff - Savithri (first respondent
herein) passed away leaving behind her son, namely Rajesh Kanna. Hence,
her son was brought on record as second respondent in this Second
Appeal. The Appellant No.2 herein also passed away during the pendency
of the Second Appeal and hence, his legal heirs were brought on record as
Appellant Nos. 3 to 5.
Arguments:
10. Mr.N.Suresh, learned Counsel for the appellants /
defendants would argue that Ex-A.13 - Sale Deed coupled with the
evidence of D.W.2, who is none other than the plaintiff’s husband, would
show that father-Venkatasamy Reddiar purchased properties in the name
of the plaintiff in the year 1971. Further, D.W.2 has deposed that the
plaintiff has been excluded from the Suit Properties from 1972. After the
demise of Venkatasamy Reddiar in 1998, the defendants are alone in
possession and enjoyment of the Suit Properties excluding the plaintiff.
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10.1. Further that the plaintiff pleaded that she received 1/3rd
share in the income from the Suit Properties. Except the ipse dixit of the
plaintiff, no documentary evidence or any other acceptable form of
evidence was adduced to prove her alleged joint possession.
10.2. Further that the Plaint was filed on December 5, 2012
i.e., beyond 12 years from the date of demise of Venkatasamy Reddiar i.e.,
April 18, 1998. Even assuming that the plaintiff has right to partition, right
to sue accrues to her on the date of demise of Venkatasamy Reddiar and
the Suit ought to have been filed within three years therefrom as per
Article 113 of the Limitation Act, 1963. He further argued that since the
plaintiff is not in possession and enjoyment of the Suit properties from the
date of demise of Venkatasamy Reddiar, the plaintiff is ousted from the
Suit properties. The defendants alone are openly, continuously and
uninterruptedly enjoying the Suit property for more than the statutory
period excluding the plaintiff in the Suit properties. Hence, the defendants
are perfected title by adverse possession also. In this regard, he would rely
on the following Judgments:
a) Krishna Pillai’s Case - Judgment of the Hon'ble
Supreme Court in Krishna Pillai Rajasekharan Nair
(D) by Lrs. Vs. Padmanabha Pillai (D) by Lrs. &
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Others reported in (2004) 12 SCC 754 ;
b) Sanjay Kaushish’s Case - Judgment of the Hon’ble
High Court of Delhi in Sanjay Kaushish Vs.
D.C.Kaushish and Others reported in AIR 1992 Del
118 ;
c) Puniyavathi’s Case - Judgment of this Court in
Puniyavathi and Another Vs. Pachaiammal and Others
[Appeal Suit No.251 of 2011 decided on 22.02.2022];
d) Emperuman's case – Judgment of this Court in
Emperumal and Others Vs. Rangarajan and Others
reported in 2017 (1) MWN (Civil) 630.
10.3. Further, he would submit that in the Memorandum of
Grounds of Appeal, the appellant have stated the following Substantial
Questions of Law:
(A)Whether the First Appellate Court is
correct in concluding the joint possession, based on
the only fact that “A” register stood in the name of
the deceased father of the plaintiff and defendants.
(B)Whether the First Appellate Court is
correct in deciding the issue of suit valuation,
beyond the facts and case pleaded in the plaint.
(C)Whether the First Appellate Court is
correct in arriving conclusion that the plaintiff
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entitled to value the suit under Section 37(2) of The
Tamil Nadu Court-Fees and Suits Valuation Act,
1955 instead of Section 37(1) of the Act.
10.4. The Trial Court considering the facts and circumstances
of the case in the right perspective, dismissed the Suit. The First Appellate
Court without appreciating the above facts in the right perspective,
erroneously decreed the Suit. The same is liable to be interfered with.
Accordingly, he prayed to admit the Second Appeal.
11. Mr.Palanikumar, learned Counsel for the respondents
herein, would argue that the Trial Court rightly decided Issue No.1 framed
by it in favour of the plaintiff by recording a specific finding that the
plaintiff is entitled to 1/3 share in the Suit Properties as per Section 8 of
the H.S.Act. But the Trial Court erroneously decided that the plaintiff is
not in joint possession and enjoyment of the Suit Properties; that the Court
Fee paid under Section 37 (2) of TNCF Act is incorrect; that the plaintiff
ought to have valued the Suit under Section 37 (1) of TNCF Act. Even
while assuming that the Court Fee paid is wrong, it is a curable defect and
the Trial Court ought not to have dismissed the Suit primarily on that
ground. Further, the preliminary issue under Section 12 (3) of TNCF Act
was not invoked. Further, the decision of the Trial Court on Issue No.3
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framed by it, is untenable in law. When the Trial Court held that the
plaintiff is entitled to 1/3 share in the Suit Properties, in view of its
decision for Issue No.2 before it, it ought to have decreed the Suit subject
to payment of Court Fee. Hence, the dismissal of the Suit by the Trial
Court is a completely erroneous approach. The First Appellate Court after
an elaborate discussion decreed the Suit setting aside the Trial Court’s
Judgment and Decree. There is no need to interfere with the First
Appellate Court’s Judgment and Decree. There is no Substantial Questions
of Law involved in the case. He further submitted that there is no cordial
relationship between the plaintiff and her husband. Hence, the plaintiff's
husband falsely deposed against the plaintiff. Accordingly, he prayed to
dismiss the Second Appeal.
Discussion and Decision:
12. This Court has heard either side and perused the available
materials viz., memorandum of grounds of appeal, pleadings, Judgment
and Decree of the Trial Court and the First Appellate Court, certified copy
of Ex-A.13 - Sale Deed dated October 1, 1971, Ex-A.14 – Sale Deed dated
March 30, 2000 and evidence of P.W.1, D.W.1 and D.W.2 furnished by the
learned counsel for the appellants in the typed set of papers.
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Limitation
13. As regards the question of limitation, the learned Counsel
for the appellants / defendants would vehemently contend that Article 113
of the Limitation Act, 1963 would be applicable to the facts of the case on
hand and the present Suit is barred by limitation.
14. The learned Counsel for the appellants would refer to
Paragraph No. 22 in Krishna Pillai’s Case, and argue that in a Suit for
partition, limitation clock begins to run when the right to sue accrues i.e.,
when the plaintiff becomes aware that his right to partition has been
denied, and hence Article 120 of the Limitation Act, 1908 (now Article
113 of the Limitation Act, 1963) would be applicable. Paragraph No. 22
thereat reads thus:
“22.In our opinion, the suit filed in the present case being a
suit for partition primarily and predominantly and the relief of
redemption having been sought for only pursuant to the direction
made by the High Court in its order of remand, the limitation for
the suit would be governed by Article 120 of the Limitation Act,
1908. For a suit for partition the starting point of limitation is —
when the right to sue accrues, that is, when the plaintiff has
notice of his entitlement to partition being denied. In such a suit,
the right of the redeeming co-mortgagor would be to resist the
claim of non-redeeming co-mortgagor by pleading his right of
contribution and not to part with the property unless the non-
redeeming co-mortgagor had discharged his duty to make
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contribution. This equitable defence taken by the redeeming co-
mortgagor in the written statement would not convert the suit
into a suit for redemption filed by the non-redeeming co-
mortgagor.”
14.1. At this juncture, this Court deems fit to cite Padma
Sundara Rao -vs- State of T.N., reported in (2002) 3 SCC 533, wherein a
Constitutional Bench of the Hon'ble Supreme Court has laid down the law
as to how Courts should consider case laws. In Paragraph No. 9 therein,
the Hon'ble Supreme Court has held as follows:
“9.Courts should not place reliance on decisions without
discussing as to how the factual situation fits in with the fact
situation of the decision on which reliance is placed. There is
always peril in treating the words of a speech or judgment as
though they are words in a legislative enactment, and it is to be
remembered that judicial utterances are made in the setting of the
facts of a particular case, said Lord Morris in Herrington v.
British Railways Board. Circumstantial flexibility, one additional
or different fact may make a world of difference between
conclusions in two cases.”
(emphasis supplied by this Court)
14.2. In view of the law laid down by the Hon'ble Supreme
Court in Padma Sundara Rao’s Case (supra), this Court deems it
appropriate to extract the facts of Krishna Pillai’s Case. They are set out
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in Paragraph No. 2 to 4 thereat, which are as hereunder:
“2.There was a piece of land measuring 1.2 acres in area
which belonged to eighteen members of a family of
Sripandarachetti Cult. It was mortgaged in 1902. There was a
partition amongst different groups. The properties involved in
partition were listed as Schedules ‘A’, ‘B’, ‘C’ and ‘D’. The ‘C’
Schedule comprised of 30 cents. The property in dispute herein is
referable to this Schedule ‘C’ land. Hereinafter, it is referred to as
the “property in suit”.
3.The property in suit was subject to a usufructuary
mortgage of the year 1078 Malayalam era. After the partition,
ten members out of the eighteen to whom different portions of the
mortgaged property were allotted filed the suit, bearing OS No.
464 of 1117 of Malayalam era, for redemption. The suit was
decreed in 1950. After the decree one Chellapan Pillai (who died
during the pendency of these proceedings and in whose place
Defendant 1 stands substituted) got the property in Schedule ‘C’
redeemed by making full payment of mortgage money. He also
entered into possession over the property in the year 1953. The
appellant-plaintiff is the assignee from certain non-redeeming co-
mortgagors of a share in ‘C’ Schedule property. His share in the
property is stated to be 9/12th in 25 cents of ‘C’ Schedule
property. In the year 1971, the plaintiff filed the present suit
seeking relief of declaration of title with recovery of possession,
and in the alternative, the relief of partition. On 7-12-1973, the
trial court decreed the suit upholding the plaintiff's entitlement to
9/12th share in the suit property but subject to payment of Rs 208
to reimburse the first defendant by way of contribution towards
the amount spent by him in redeeming the property. A preliminary
decree determining the share of the plaintiff and his entitlement
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to partition was passed. The trial court's decree was upheld by
the first appellate court dismissing the appeal preferred by
Defendant 1. Defendant 1 preferred a second appeal (No. 1149 of
1976). Vide judgment dated 10-2-1981, the High Court allowed
the appeal and set aside the decrees of the two courts below. It
was urged before the High Court on behalf of Defendant 1 that
the property being subject to mortgage, and Defendant 1 having
subrogated himself in place of the original mortgagee, the suit
filed by the plaintiff merely for declaration, partition and
recovery of possession, was not maintainable and it was
necessary for the plaintiff to have sought for the relief of
redemption. Even if the relief of redemption of mortgage was not
specifically sought for, it was submitted on behalf of Defendant 1
that the suit in substance was one for redemption and construed
so it was barred by time under Article 148 of the Limitation Act,
1908. The High Court formed an opinion that this aspect of the
case did not appear to have engaged the attention of the courts
below and, therefore, the case needed to be remanded for
decision afresh. The High Court allowed the appeal, set aside the
decree under appeal and remanded the case to the trial court
with a direction to allow the parties an opportunity of amending
the pleadings, so that the plaintiff could seek the relief of
redemption and the defendant could raise the plea as to bar of
limitation. Pursuant to the order of remand, the pleadings were
amended. The suit was once again decreed by the trial court and
the first appellate court.
4.In the second appeal preferred by Defendant 1, it is
interesting to note that the High Court formed an opinion that
Defendant 1 had redeemed the property on behalf of the entire
family, and therefore, after the payment of mortgage money and
recovering back the possession from the mortgagee, nothing had
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remained to be redeemed. The plaintiff was entitled to
declaration of title and other reliefs prayed for by him. The
learned Judge of the High Court entertained serious doubts
about the correctness of the view taken by the learned Single
Judge in the earlier order of the High Court remanding the case
to the trial court but felt bound (and helpless) by the observations
and the directions made in the earlier judgment, and rightly so.
The learned Judge noted the submission of the learned counsel
for the plaintiff that the question of limitation did not arise in the
case and all that to which the first defendant was entitled was to
have reimbursement for whatever amount he might have spent on
redemption. Having said so, the learned Judge observed
desperately, “I would have readily agreed with this submission of
the learned counsel for the plaintiff if I were free to do so. In fact,
according to me, in this case, no question of further redemption
of 1078 mortgage arises at all.” The learned Judge held that
“the first defendant was not required to
claim the status of a redeeming co-mortgagor
vis-à-vis the other members of the family on
the facts and in the circumstances of the case.
But since I am bound by the earlier order of
remand in SA No. 1194 of 1976, I am
constrained to overrule the contention of the
learned counsel for the respondent that the
claim of the plaintiff could not be held to be
barred by limitation.”
Consequently, the learned Single Judge by the judgment
dated 22-3-1993 allowed the appeal, set aside the judgments and
decrees of the courts below and directed the suit to be dismissed.
Feeling aggrieved by the judgment of the High Court the plaintiff
has filed this appeal by special leave.”
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14.3. Krishna Pillai’s Case pertains to a Suit for partition and
redemption. The facts of that case are distinguishable from that of the case
on hand. It is in an entirely different factual context and nature of Suit, the
Hon'ble Supreme Court held as set out in Paragraph No. 22 thereat.
However, the Hon'ble Supreme Court ultimately held that the Suit filed by
the appellant therein is maintainable and the appellant therein is entitled to
partition, which shows that the Hon'ble Supreme Court did not propose
that residuary Article 120 of the Limitation Act, 1908 (now Article 113 of
the Limitation Act, 1963) would be applicable to a Partition Suit like the
present Suit. Hence, this Court is of the view that Krishna Pillai’s Case, is
not applicable to the facts and circumstances of the present case, and even
if applicable would not come to the aid of the defendants.
15. The learned Counsel for the appellants would further refer
to Paragraph Nos.44 and 45 of Sanjay Kaushish’s Case in support of his
aforesaid contentions with respect to limitation. Paragraph Nos. 44 and 45
are as hereunder:
“44.The next question is of limitation. It is evident that if
averments in the plaint are to be taken into consideration, then
the decree and the other transactions are to be treated as void,
sham and fictitious documents. Therefore, it was not necessary
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for the plaintiff to have sought any declaration for avoiding the
said document and the decree and plaintiff could file a suit
claiming substantive relief which is a relief of partition and other
ancillary reliefs flowing from the same. The limitation for filing
the suit for partition starts from the date the right to sue accrues.
The right to sue could accrue when the said right is threatended
by the opposite side. The residuary Article 113 of the Limitation
Act would apply and in the present case, according to the
plaintiff, the said right to sue accrued to him when he was tried
to be ousted from the joint Hindu family businesses and
properties which occurred in 1985 and the suit filed in the year
1986 is within time. The final decision on the point of limitation
cannot be given at this stage. If we treat only, averments made in
the plaint as correct, then the suit appears to be within time. The
learned counsel for the plaintiff has cited a number of judgments
to show that in a such a suit residuary article is applicable and
not the article dealing with relief of cancellation of the document
or decree. (SeeBalasundara Pandiam Pillai v. Authimulam
Chettiar, AIR 1919 Mad 679(1),Mst. Basant Kaur v. Ram Singh,
AIR 1939 Lahore 544, Appanna v. Jami Venkatappadu, AIR 1953
Mad 611,Dalim Kumar Sain v. Smt. Nandarani Dassi, AIR 1970
Cal 292,Asaram v. Ludheshwar, AIR 1938 Nagpur 335 (FB) and
Mst. Aisha Begam v. Mst. Kundan Jan, AIR 1945 All 367].
45.So, keeping in view the averments made in the plaint, it
cannot be said that the suit is on the face of it barred by time.
However, the final decision on the point of limitation would be
given after framing issues and recording evidence.”
15.1. In view of Padma Sundara Rao’s Case (supra), this
Court deems fit to set out the factual matrix of Sanjay Kaushish’s Case.
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Relevant extract is as follows:
“3.Facts of the case as averred by the plaintiff, in brief, are
that his late grandfather Pt. Lakshmi Chandra constituted a Joint
Hindu Family with his two sons, namely, Pratap Chand and D.C.
Kaushish defendant No. 1 and owned and possessed moveable
and immoveable properties. The immoveable properties are
described in Schedule A to the plaint. Pratap Chand is stated to
have died issueless in 1916. Pt. Lakshmi Chand had died on
February 10, 1934. D.C. Kaushish-defendant No. 1 then became
Karta of the Joint Hindu Undivided Family comprising of
himself, his wife defendant No. 4, and his three sons, namely,
Ajay Kaushish-defendant No. 2 and Uday Kaushish-defendant
No. 3 and the plaintiff. It is the case of the plaintiff that defendant
No. 1 as Karta of Hindu Undivided Family (for short the ‘HUF’)
managed and possessed the HUF properties together with all
acquisitions thereof …
5. …It is pleaded that this huge income attracted a levy of
huge income-tax, wealth-tax and other taxes including house-tax
and other charges and cesses and in order to avoid and/or reduce
the incidence of tax liabilities etc. which were then leviable and
being levied on the HUF, defendant No. 1 devised a scheme of
effecting a colourable and sham partition of the assets and
properties including businesses and he got filed on December 22,
1962, a collusive and a sham suit for partition. Shri Ajay
Kaushish, who was then minor, was shown to be represented by
next friend Shri Shiv Narain Vashisht, sister's husband of
defendant No. 1, and plaintiff and the other minor son of
defendant No. 1 were shown represented through their mother-
defendant No. 4.
*** *** ***
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11.So, the plaintiff sought a decree for partition of the said
assets, properties and businesses of the HUF for separating his
share and for getting possession of his share and for rendition of
accounts …”
15.2. From the above, it is clear that in Sanjay Kaushish’s
Case joint family properties were collusively partitioned earlier by way of
Arbitral Award backed by Court Decree while the plaintiff was a minor,
who after attaining the age of majority filed the Suit praying to declare the
partition as collusive, sham and nominal along with other reliefs as found
above. Learned Single Judge of Hon’ble Delhi Court observed that final
decision on limitation would be made after framing issues and recording
evidence. This Court is of the view that the same cannot be considered as a
ratio decedendi. Further, the factual matrix thereof is also deviant from the
factual matrix of the case on hand. Hence, Sanjay Kaushish’s Case does
not come to the aid of the defendants.
16. Further, the learned Counsel for the defendants would rely
on Puniyavathi’s Case, wherein learned Single Judge of this Court by
relying on the Judgment of the Hon'ble Supreme Court in Vidya Devi @
Vidya Vati (Dead) -vs- Prem Prakash & Others, reported in AIR 1995 SC
1789, has held as follows:
“22. P.W.1/Puniyavathi, who is the 1st plaintiff in this suit
has not explained or produced any evidence to show how she was
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in joint enjoyment of the suit property along with her brothers as
a co-sharer. Out of three daughters of Balakrishnan Padayachi,
the second plaintiff had not even mounted the witness box to
depose against the interest of their brothers and yet another
daughter has filed the written statement supporting the brothers
and the partition deed. The first plaintiff alone plead that the suit
properties were in joint possession and enjoyment, but without
any evidence to support her plea.
23. In Vidya Devi @ Vidya Vati (Dead) vs Prem Prakash &
Others reported in (1995 AIR 1789), the Hon’ble Supreme Court
has observed:-
“The legislature has not prescribed any period of
limitation for filing a suit for partition because partition
is an incident attached to the property and there is
always a running cause of action for seeking partition
by one of the co-sharers if and when he decides not to
keep his share joint with other co-sharers. Since the
filing of the suit is wholly dependent upon the will of
the co-sharer, the period of limitation, specially the date
or time from which such period would commence, could
not have been possibly provided for by the legislature
and, therefore, in this Act also a period of limitation, so
far as suits for partition are concerned, has not been
prescribed. This, however, does not mean that a co-
sharer who is arrayed as a defendant in the suit cannot
raise the plea of adverse possession against the co-sharer
who has come before the Court as a plaintiff seeking
partition of his share in the joint property.
Normally, where the property is joint, co-sharers
are the representatives of each another. The co-sharer
who might be in possession of the joint property shall be
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deemed to be in possession on behalf of all the co-
sharers. As such, it would be difficult to raise the plea of
adverse possession by one co-sharer against the other.
But if the co-sharer or the joint owner had been
professing hostile title as against other co-sharers openly
and to the knowledge of others joint owners, he can,
provided the hostile title or possession has continued
uninterruptedly for the whole period prescribed for
recovery of possession, legitimately acquire title by
adverse possession and can plead such title in defence to
the claim for partition…”
(emphasis supplied by this Court)
16.1. This Court deems fit to set out the factual matrix of
Puniyavathi’s Case by extracting Paragraph No. 2 thereat hereunder:
“2. The plaintiffs are daughters of one Mr.Balakrishnan
Padayachi, who died interstate in the year 1978. Their mother
Valliammai died in the year 2004. Mr.Balakrishnan Padayachi
and Valliammai had four sons and three daughters. While two
daughters had joined together and filed suit for partition,
alleging that they were in joint possession and enjoyment of the
suit property after the demise of Balakrishnan Padayachi, the
other daughters and sons have contested the suit for partition
alleging that, the plaintiffs have no interest in the estate of their
father's property. According to the defendants the properties
which are left by Mr.Balakrishnan Padayachi was divided among
the male members as per the partition deed dated 25.07.1991 and
same has been acted upon. Further alienation of the suit
properties has been effected 18 years prior to the suit and the
plaintiffs were aware of all those facts, had filed the suit for
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partition with ulterior motive though they have no rights in the
properties.”
16.2. The learned Single Judge after relying on Vidyvati’s
Case (cited supra) held that as far as partition among co-sharers is
concerned, the legislature has not prescribed any period of limitation for
filing a Suit for partition. Further held that, nonetheless, the defendant can
raise a plea of adverse possession against the plaintiff (co-sharer) seeking
partition of plaintiff’s share in the joint property.
16.3.There is no quarrel with the law proposed in
Puniyavathi’s Case. As a matter of fact, it supports the case of the plaintiff
and not the defendants’ case.
16.4.The learned counsel relied on a judgment of this Court
in Emperuman and Others Vs. Rangarajan and Others reported in 2017
(1) MWN (Civil) 630 wherein, in paragraph Nos.39 to 41 it is observed as
under:
“39.The learned Senior Counsel has invited the
attention of this Court to paragraph No.22 of the affidavit
filed in support of the petition, wherein it is stated that on
7.10.1992 the first petitioner/plaintiff had issued a notice to
Kuppanna Mudaliar claiming partition and he in turn, had
issued a reply, dated 20.10.1992 and thereafter, admittedly,
the respondents/plaintiffs had never raised the issue of
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partition.
40.As argued by the learned Senior Counsel, the
plaintiffs have slept over for about 19 years from 20.10.1992
and all of a sudden, they came forward with a suit for
partition in O.S.No.59 of 2011, which seems to have been filed
on 27.4.2011.
41.She has also added that the right to sue accrues for
the respondents/plaintiffs on and from 20.10.1992, i.e., from
the date of denial of partition. Therefore, the
respondents/plaintiffs ought to have filed the suit on or before
19.10.1995. But unfortunately, the suit was not filed within
that stipulated period, instead it is filed after the lapse of 19
years.”
To be noted, the aforesaid decision arising out of the order passed in Order
VII Rule 11 of CPC. In the said case, plaint had been filed after 19 years
from the date of denial i.e., after 19 years of the reply notice denying the
plaintiff's right. Hence, the Hon'ble Single Judge of this Court held that the
Suit is barred by limitation. Therefore, the said judgment would not help
to the case of the defendant.
16.5.To be noted, Vidyavati's case referred supra, it has been
categorically held by the Hon'ble Three Judges that the legislature has not
prescribed any period of limitation for filing a suit for partition because
partition is an incident attached to the property and there is always a
running cause of action. In view of the decision rendered by the Hon'ble
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Supreme Court, this Court is of the considered view that Article 113 of the
Limitation Act would not be applicable if a co-sharer seeks partition
against another co-sharer. Hence, the judgment of this Court in
Emperuman's case (cited supra) would not be applicable to the present
case on hand.
17.Hence, all the four case laws relied on by the learned
Counsel for the appellants / defendants do not come to the aid of the
defendants. Article 113 of the Limitation Act, 1963 would not be
applicable while one co-owner filed a Suit for partition against other co-
owner praying to partition their joint property. Hence, this Court is of the
view that the Suit is not barred by limitation as alleged by the defendants.
Ex-A.13 - Sale Deed
18. Learned Counsel for the appellants / defendants would
contend that father - Venkatasamy Reddiar executed Ex-A.13 - Sale Deed
in favour of the plaintiff in the year 1971; that the plaintiff is excluded
from the Suit Properties even during the lifetime of Venkatasamy Reddiar;
and that Venkatasamy Reddiar never intended to give the plaintiff any
share in the Suit Properties.
19. The aforesaid contentions are untenable in law for the
following reasons:
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a) Father died intestate on April 4, 1998 leaving behind the plaintiff
and the defendants as legal heirs as well as the Suit Properties as
his self-acquired properties. Succession opens the moment
Venkatasamy Reddiar passed away. As stated supra, the plaintiff
and the defendants are co-heirs and co-owners entitled to equal
share in the joint properties (Suit Properties).
b) If really, as contended by the defendants, the plaintiff’s father
intended disinherit the plaintiff, he would have left a testament or
Will or would have settled the Suit Properties in favour of the
defendants during his lifetime. In absence of such actions, the
right of the plaintiff over the Suit Properties as a legal heir under
Section 8 of the H.S.Act cannot be deprived by citing flimsy
reasons. Assuming a moment that Venkatasamy Reddiar during
his lifetime never intended to give any property to the plaintiff,
even then, given the absence of any testament or Will in favour
of the defendants, the plaintiff’s rights over the Suit Properties
remain unaffected.
c) If really any property had been purchased / gifted / bequeathed /
settled in the name of the plaintiff by the father, in the eyes of
law, it is only for the benefit of his daughter - plaintiff, unless the
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contrary is proved. In this case, the defendants relied on Ex-A.13
- Sale Deed. Learned Counsel for appellant / defendants
furnished a certified copy of Ex-A.13 before this Court (in the
open court). The properties covered under Ex-A.13 was
purchased by plaintiff and one Nagalakshmi, who is the first wife
of the plaintiff’s husband. Nothing contained in Ex-A.13 shows
that the property covered thereunder was purchased by father -
Venkatasamy Reddiar. Further, the property covered thereunder
is not a matter of concern in this case. Notably, the subject matter
of the present Suit concerns Section 8 and not Section 6 of the
H.S.Act. Hence, the contention of the defendants that father-
Venkatasamy Reddiar already gave sufficient property to the
plaintiff is no way relevant to this case. The aforesaid contentions
of the defendants deserve to be rejected.
Ouster and Adverse Possession
20. With regard to the rights of co-owners, in Mitra’s Co-
Ownership & Partition, 8th Edition (Eastern Law House), at Page No.2,
it is observed as follows:
“All Co-owners have equal rights and co-ordinate interest
in the property. But their shares may be either fixed or
indeterminate. If the sharers are known they need not be equal.
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But whether the shares are known or indeterminate and whether
the shares are equal or unequal, every co-owner has a right of
enjoyment and possession equal to that of the other co-owners.
Each co-owner is in theory interested in every infinitesimal
portion of the subject-matter and each has the right, irrespective
of the quantity of his interest, to be in possession of every part
and parcel of the property, jointly with the others.”
21. Regarding Adverse Possession by co-sharer, in Law
relating to Partition by M.N.Das, Seventh Edition, Eastern Law House,
at Page Nos.301 to 303, it is observed as follows:
“Adverse Possession by co-sharer:-
The ordinary classical requirement of adverse possession is
that it should be nec vi nec calm nec precario. The possession
required must be adequate in continuity, in publicity and in extent
to show that it is possession adverse to the competitor. But, in
order to establish adverse possession of one co-heir as against
another, it is not enough to show that one out of them is in sole
possession and enjoyment of the profits of the properties. Ouster
of the non-possessing co-heir by the co-heir in possession who
claims his possession to be adverse, should be made out. The
possession who claims his possession to be adverse, should be
made out. The possession of one co-heir is considered, in law, as
possession of all the co-heirs. When one co-heir is found to be in
possession of the properties it is presumed to be on the basis of
joint title. The burden of making out ouster is on the person
claiming to displace the lawful title of the co-heir by his adverse
possession. No hard and fast rule can be laid down from which it
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can be inferred that any co-owner/sharer has ousted his co-
sharer. It depends upon the facts of each case. Long possession
by itself is not a ground to oust a co-sharer but something more
positive is required to be done. There must be a hostile open
possession, and denial and repudiation of the rights of other co-
owners must be brought home. Service of notice by one co-sharer,
for partition and possession, and inaction thereunder or failure
to promptly file a suit thereafter, was not enough to establish such
co-sharers ouster or adverse possession of the other co-owners.
The onus to prove the adverse possession is on the person who
raises the plea. A suit for possession based on title was filed by a
person who had already proved his title in an earlier suit. In such
circumstances, the onus to prove acquisition by adverse
possession lies on the defendant. The defendant not having raised
any plea of adverse possession, the suit is not time barred. In the
absence of such a plea the possession of the defendant is devoid
of the requisite animus so as to make his possession adverse for
the purpose of commencement of the prescription period. Where
a co-owner is claiming to have perfected his right on the basis of
adverse possession, such a co-owner has to prove the ouster of
other co-owner, to the knowledge of all concerned, only then he
can claim to have perfected rights on the basis of adverse
possession against a co-owner. A person pleading adverse
possession has no equities in his favour. Since he is trying to
defeat the rights of the true owner, it is for him to clearly plead
and establish all the facts necessary to substantiate his claim of
adverse possession. The correct legal position, therefore, is that
possession of a property, belonging to several co-sharers, by one
co-sharer shall be deemed to be possession on behalf of the other
co-sharers unless there has been a clear ouster by denying the
title of other co-sharers and mutation in the revenue record in the
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name of one co-sharer would not amount to ouster unless there is
a clear declaration that the title of other co-sharers was denied.
Ouster is a positive matter; and the hostile animus necessary to
constitute ouster must also be a positive matter. It is a matter
involving action; it cannot be mere inaction. If the co-owner in
possession did not give a share of the income to the other co-
owner out of possession merely because the latter did not ask for
it, then such animus may only be a negative animus. On the other
hand, if the evidence shows that even if the co-owner out of
possession demanded his share, the co-owner in possession
would not have given him a share, then the animus is positive, in
the sense that it is indicative of an animus to exclude.
There must be a clear refusal to allow the other co-owner
to participate in the enjoyment of the property. Where there is
neither an open denial of title nor any ouster to the knowledge of
the co-owner intended to be ousted, it cannot be said that the
possession of the co-owner claiming adverse possession creates a
title by prescription. An act of mortgage of a piece of land by one
co-sharer would not amount to an act of ouster of the other co-
sharers. There is no complete prohibition if a co-sharer in
exclusive possession sells or mortgages a part of the joint land
because that share can be adjusted at the time of partition
against the share of the alienating party. No secret hostile animus
can create adverse possession in favour of a co-sharer in
possession. Again, where some co-sharers in possession of joint
property effect a partition of the same by a registered deed
without knowledge of the other co-sharers who came to know
about it when they were denied the income of those properties,
the persons in possession of those properties cannot claim title by
adverse possession against the non-participating co-sharers.
Exclusive possession of a co-sharer does not amount to adverse
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possession against other co-sharers unless such possession is
exercised by ousting the other co-sharers. ...
... Therefore, in order to perfect a title by adverse
possession two ingredients are inseparable, i.e. corpus
possidendi and animus possidendi. In other words, the physical
possession on the one hand and the intention to exclude an
adversary from possession overtly and without attempt at any
concealment and it must be adequate incontinuity.”
22. This Court in D.V.Jegannathan and 5 others -vs-
P.R.Srinivasan and 5 others [(1999) 3 LW 742], has held as follows:
“Mutation of the Revenue records, payment of taxes, long
possession of the property, management of the property,
appropriation of income, the other sharers being out of
possession of the property etc., each of such acts by a co-owner
by itself may not be sufficient to establish ouster or open
assertion of adverse title as against another co-owner.”
23. The Hon’ble Supreme Court in P.Lakshmi Reddy vs
L.Lakshmi Reddy [AIR 1957 SC 314], has held as follows:
“4.Now, the ordinary classical requirement of the adverse
possession is that it should be nec vi nec clam precario. (See
Secretary of State for India V Debendra Lal Khan. 61 Ind App 78
at p 82: (AIR 1934 PC 23 at p.25) (A). The possession required
must be adequate in continuity, in publicity and in extent to show
that it is possession adverse to the competitor. (See Radhamoni
Debi v. Collector of Khulna, 27 Ind APP 136 at p. 140 (PC)(B).
But it is well-settled that in order to establish adverse possession
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of one co-heir as against another it is not enough to show that
one out of them is in sole possession and enjoyment of the profits,
of the properties. Ouster of the non-possessing co-heir by the co-
heir in possession who claims his possession to be adverse,
should be made out. The possession of one co-heir is considered,
in law, as possession of all co-heirs. When one co-heir is found to
be in possession of the properties it is presumed to be on the
basis of joint title. The co-heir in possession cannot render his
possession adverse to the other co-heir not in possession merely
by any secret hostile animus on his own part in derogation of the
other coheir?s title. (See Corea v. Appuhamy, 1912 AC 230(C). It
is a settled rule of law that as between co-heirs there must be
evidence of open assertion of hostile title, coupled with exclusive
possession and enjoyment by one of them to the knowledge of the
other so as to constitute ouster.”
24. The Hon’ble Supreme Court in Vidyavati’s Case (supra),
has held as follows:
“28.Ouster does not mean actual driving out of the co-
sharer from the property. It will, however, not be complete unless
it is coupled with all other ingredients required to constitute
adverse possession, Broadly speaking, three elements are
necessary for establishing the plea of ouster in the case of co-
owner. They are (i) declaration of hostile animus (ii) long and
uninterrupted possession of the person pleading ouster and (iii)
exercise of right of exclusive ownership openly and to the
knowledge of other co-owners. Thus co-owner, can under law,
claim title by adverse possession against another co-owner who
can, of course, file appropriate suit including suit for joint
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possession within time prescribed by law.”
25. Further, this Court in Smt.Mamutha Bai and others -vs-
G.Ramakrishnan and another, reported in 2024 (3) CTC 622 has
summarized the law in this regard as follows:
“31.This Court deems fit to summarise the law in this
regard. Adverse Possession commences with wrongful possession
and is asserted against rightful ownership. Essential pleadings
include actual, conclusive, open and uninterrupted hostile
possession with clear intent to claim ownership of the property in
question, contrary to the true owner's rights. In order to claim
adverse possession, specific averments as to when and how the
possession became adverse to the true owner are necessary for
computing the limitation period from thereon. The plea of
adverse possession is essentially a factual plea and such plea
should be pleaded specifically and proved by adducing
substantive legal evidence. Long Possession by itself would not
be sufficient to prove adverse possession. Animus Possidendi
against the true owner is also necessary. Further, permissive
possession would never be adverse to the real owner.”
26. In this case, undisputedly, the Suit Properties are self-
acquired properties of Venkatasamy Reddiar. He died intestate on April 4,
1998 leaving behind the plaintiff and the defendants as his Class - I legal
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heirs. The moment he passed away, the Suit Properties devolved upon the
legal heirs as per Section 8 of the H.S.Act and hence, the plaintiff and the
defendants became co-heirs and co-owners of the Suit Properties. Law
presumes that possession and enjoyment of one co-owner is that of other
co-owner also. The plaintiff pleaded and deposed that she is in joint
possession and enjoyment of the Suit Properties by receiving 1/3rd share
out of the income from the Suit Properties. The plaintiff issued Ex-A.11 -
Notice on June 30, 2012, for which, the defendants sent Ex-A.12 - Reply
on September 1, 2012 denying the plaintiff’s right of share in the Suit
Properties. Hence, the plaintiff filed the present Suit on December 5, 2012
seeking partition and rendition of accounts. The burden is upon the
defendants to prove their plea of adverse possession and ouster. In view of
the authorities cited above, it is clear that the plea of ouster and adverse
possession have not been satisfactorily established by the defendants in the
instant case. The defendants have merely pleaded ouster and adverse
possession and have not taken any steps to prove their case. Needless to
mention, mere pleadings do not amount to proof.
Valuation of Suit and Court Fees
27. As regards the valuation of Suit, the law in this regard is
well settled. In Neelavathi's case [Neelavathi and Others -vs- Natarajan
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and Others, reported in AIR 1980 SC 691], the Hon'ble Supreme Court in
Paragraph No.8 held as follows:-
“The general principle of law is that in the case of co-
owners, the possession of one is in law possession of all, unless
ouster (or) exclusion is proved. To continue to be in joint
possession in law, it is not necessary that the plaintiff should be
in actual possession of the whole or part of the property. Equally
it is not necessary that he should be getting a share or some
income from the property. So long as his right to a share and the
nature of the property as joint is not disputed the law presumes
that he is in joint possession unless he is excluded from such
possession. Before the plaintiffs could be called upon to pay
court fee under Sec. 37(1) of the Act on the ground that they had
been excluded from possession, it is necessary that on a reading
of the plaint, there should be a clear and specific averment in the
plaint that they had been “excluded” from joint possession to
which they are entitled in law. The averments in the plaint that
the plaintiffs could not remain in joint possession as they were
not given any income from the joint family property would not
amount to their exclusion from possession.”
28. Ratio decidendi of Neelavathi's Case is in favour of the
plaintiff. Hence, this Court is of the view that the Court Fee paid under
Section 37 (2) of TNCF is perfectly correct and valid.
28.1. Further, it is apposite to extract hereunder Section 12 of
TNCF Act which reads as follows:
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“12. Decision as to proper fee in other Courts. (1)In
every suit instituted in any Court other than the High Court,
the Court shall, before ordering the plaint to be registered,
decide on the materials and allegations contained in the
plaint and on the materials contained in the statement, if any,
filed under section 10 the proper fee payable thereon, the
decision being however subject to review, further review and
correction in the manner specified in the succeeding sub-
sections.
(2)Any defendant may, by his written statement filed
before the first hearing of the suit or before evidence is
recorded on the merits of the claim but, subject to the next
succeeding sub-section, not later, plead that the subject-
matter of the suit has not been properly valued or that the fee
paid is not sufficient. All questions arising on such pleas shall
be heard and decided before evidence is recorded affecting
such defendant, on the merits of the claim. If the Court
decides that the subject-matter of the suit has not been
properly valued or that the fee paid is not sufficient, the Court
shall fix a date before which the plaint shall be amended in
accordance with the Court's decision and the deficit fee shall
be paid. If the plaint be not amended or if the deficit fee be
not paid within the time allowed, the plaint shall be rejected
and the Court shall pass such order as it deems just regarding
costs of the suit.
(3)A defendant added after issues have been framed
on the merits of the claim may, in the written statement filed
by him, plead that the subject-matter of the suit has not been
properly valued or that the fee paid is not sufficient. All
questions arising on such pleas shall be heard and decided
before evidence is recorded affecting such defendant, on the
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merits of the claim, and if the Court finds that the subject-
matter of the suit has not been properly valued or that the fee
paid is not sufficient, the Court shall follow' the procedure
laid down in subsection (2).
(4)(a)Whenever a case comes up before a Court of
Appeal, it shall be lawful for the Court, either of its own
motion or on the application of any of the parties, to consider
the correctness of any order passed by the lower Court
affecting the fee payable on the' plaint or in any other
proceeding in the lower Court and determine the proper fee
payable thereon.
(b)If the Court of Appeal decides that the fee paid in
the lower Court is not sufficient, the Court shall require the
party liable to pay the deficit fee within such time as may be
fixed by it.
(c)If the deficit fee is not paid within the time fixed and
the default is in respect of r. relief which has been dismissed
by the lower Court and which the appellant seeks in appeal,
the appeal shall be dismissed, but if the default is in respect of
a relief which has been decreed by the lower Court, the deficit
fee shall be recoverable as if it were an arrear of land
revenue.
(d)If the fee paid in the lower Court is in excess, the
Court shall direct the refund of the excess to the party who is
entitled to it.
(5)All questions as to value for the purpose of
determining the jurisdiction of Courts arising on the written
statement of a defendant shall be heard and decided before
evidence is recorded affecting such defendant, on the merits of
the claim.”
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If the Trial Court finds that Court Fee paid by the plaintiff is incorrect, in
such a scenario, the Trial Court ought not to have dismissed the Original
Suit after conclusion of trial. Instead, the Trial Court ought to have
directed the plaintiff to pay the Court Fee and amend the plaint or the Trial
Court ought to have passed preliminary decree subject to payment of
Court Fee. Hence, the Trial Court approach is erroneous one. Admittedly,
the Suit properties are agricultural land. The plaint was filed on December
5, 2012. As per the TNCF Act, 1955 market value to be calculated as per
Section 7 of the Act [Before the commencement of Tamil Nadu Court-
Fees and Suits Valuation (Amendment) Act, 2017 (TN Act 06 of 2017,
with effect from March 1, 2017)] which reads as follows:
“7.Determination of market value.- (1) Save as
otherwise provided, where the fee payable under this Act
depends on the market value of any property, such value shall
be determined as on the date of the presentation of the plaint.
(2)The market value of land in suits falling under Sections
25(a), 25(b), 27(a), 29, 30, 37(1), 37(3), 38, 45 or 48 shall be
deemed to be -
(a)Where the land is ryotwari land – thirty times the survey
assessment on the land:
... ... ... ...
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... ... ...
Admittedly, the Suit properties are agricultural lands. Total assessment of
the plaintiff are Rs.58.08. Hence, market value of the Suit properties are
30 X 58.08 = Rs.1,742/-. As per Article I of Schedule-I, the proper Court
Fee would be Rs.1,742/- X 7.5% = Rs.130.68. Notably, the plaintiff paid a
fixed Court Fee of Rs.750/- as per Section 37(2) of TNCF Act, which is
higher than the fee to be calculated under Section 37(1) of TNCF Act. The
Trial Court miserably failed to take these aspects into its consideration and
erred in holding that the plaintiff has not paid proper Court Fee.
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Substantial Questions of Law
29. The appellant in his memorandum of appeal under
Section 100 (3) of the Code of Civil Procedure, 1908 has set out the
Substantial Questions of Law that arise in this Second Appeal according to
him. This Court has perused the same. The Substantial Questions of Law
found therein are mere question of facts which the First Appellate Court
has rightly dealt with.
30. Further, during the course of arguments, the appellant
filed a Memo containing additional Substantial Questions of Law under
proviso to subsection 5 of Section 100 of the Code of Civil Procedure,
1908. The Questions of law raised by way of the said Memo are all settled
legal positions and hence, they are not valid.
31. In this case, the Trial Court held that the plaintiff is
entitled to 1/3 share. The defendants did not prefer an appeal over the
Judgment and Decree of the Trial Court. No doubt, it is true that under
Order XLI Rule 22 of Code of Civil Procedure, 1908, without filing
appeal or cross-objection, the respondents-defendants in order to sustain
the impugned part of the decree, may challenge the findings based on
which the part of the decree against them was passed. In other words, the
respondents-defendants may support the impugned part of the decree by
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S.A.NO.415 OF 2018
asserting that the matters decided against them ought to have been ruled in
their favour [See Ravinder Kumar Sharma v. State of Assam, reported in
(1999) 7 SCC 435]. However, from the perusal of the available case files,
it appears that the defendants did not object the Trial Court’s finding that
the plaintiff is entitled to 1/3 share, before the First Appellate Court. Be
that as it may, the First Appellate Court in Paragraph Nos.14 to 18 has
analyzed the evidences and documents in a detailed manner and came to
the conclusion that plaintiff is entitled 1/3 share in the Suit property and
accordingly, allowed the appeal, set aside the Trial Court's judgment and
decree and decreed the Original Suit in favour of the plaintiff.
32. Upon careful consideration of the Judgment of the First
Appellate Court, this Court is of the considered view that there is no
irregularity or infirmity in it. The First Appellate Court has rightly
appreciated the facts and circumstances and allowed the appeal. There is
no warrant to interfere with the same.
33. To sum up, this Court is of the considered view that the
plaintiff is entitled to seek partition and her claim is not barred under law
for the foregoing reasons.
Conclusion:
34. Resultantly, the Second Appeal is dismissed as devoid of
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S.A.NO.415 OF 2018
merit. The Judgment and Decree of the First Appellate Court are hereby
confirmed. Considering the facts and circumstances of the case, the parties
shall bear their own costs. Connected Civil Miscellaneous Petition is
closed.
19.10.2024
Index : Yes
Internet : Yes
Neutral Citation : Yes
Speaking Order
TK
To
1.The Sessions Judge
Magila Court, Cuddalore.
2.The Principal Sub Judge
Cuddalore.
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S.A.NO.415 OF 2018
https://www.mhc.tn.gov.in/judis
S.A.NO.415 OF 2018
R.SAKTHIVEL, J.
TK
S.A.NO.415 OF 2018
19.10.2024
https://www.mhc.tn.gov.in/judis
