Madras High Court
Samuvel @ Samivel vs Susheela on 29 October, 2024
2024:MHC:3773
S.A.NO.173 OF 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.10.2024
CORAM:
THE HON'BLE MR.JUSTICE R.SAKTHIVEL
S.A.NO.173 OF 2020
AND CMP NO.3538 OF 2020
Samuvel @ Samivel ... Appellant / Appellant /
Defendant
Versus
1.Susheela
2.Sasikala
3.Vinothini ... Respondents /Respondents /
Plaintiffs
PRAYER: Second Appeal filed under Section 100 of Code of Civil
Procedure, 1908, praying to set aside the Judgment and Decree dated
August 8, 2019 passed in A.S.No.43 of 2017 by the learned Principal
Subordinate Judge, Erode, confirming the fair and final Order dated March
2, 2016 passed by the Principal District Munsif, Erode in I.A.No.974 of
2012 in O.S.No.203 of 2009.
For Appellant : Mr.V.S.Kesavan
For Respondents : Mr.R.Ganesh
JUDGMENT
This Second Appeal is directed against the Judgment and
Decree dated August 8, 2019 passed in A.S.No.43 of 2017 by the 'learned
Principal Subordinate Judge, Erode' [henceforth 'First Appellate Court' for
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brevity and convenience] confirming the fair and final Order dated March
2, 2016 passed in I.A.No.974 of 2012 in O.S.No.203 of 2009 by the
'learned Principal District Munsif, Erode' [henceforth 'Trial Court' for
brevity and convenience].
2. The Suit Property is an absolute property of
Thirumayammal, who is the wife of 1st defendant and mother of plaintiff
and 2nd defendant. Thirumayammal died intestate in the year 2003 leaving
behind her two sons, namely S.Thangavel (plaintiff) & Samuvel @
Samivel (2nd defendant) and her husband - Subramania Gounder (1st
defendant) as her legal heirs to succeed her estate. Hence, as per Section 15
of the Hindu Succession Act, 1956, the plaintiff is entitled to 1/3 share and
the defendants are jointly entitled to 2/3 share. In the said Suit, Preliminary
Decree was passed on October 14, 2009. Thereafter, the plaintiff filed an
Interlocutory Application in I.A.No.1418 of 2009 in O.S.No.203 of 2009
for passing Final Decree. Meanwhile, the plaintiff – Thangavelu passed
away on December 11, 2010, leaving behind his wife - Susheela and two
daughters, namely Sasikala and Vinothini and they were brought on record
as Petitioner Nos. 2 to 4 in the Final Decree application. Thereafter, on
January 8, 2011, the 1st respondent therein (1st defendant in the Original
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Suit) namely Subramania Gounder passed away. Consequently, the
Petitioner Nos.2 to 4 filed an Interlocutory Application in I.A.No.974 of
2012 in O.S.No.203 of 2009 under Order XX Rule 18 of the Code of Civil
Procedure, 1908 ['CPC' for short] praying to pass a Supplementary
Preliminary Decree dividing the Suit Property into 6 shares based on good
and bad soil and allot 1/6 share to each petitioners, collectively 3/6 share.
3. The second respondent filed a Counter in the said
Interlocutory Application stating that Subramania Gounder did not die
intestate. During his lifetime he executed a Registered Gift Settlement
Deed in favour of the 2nd respondent on January 21, 2009, thereby settling
Subramania Gounder’s share in the Suit Properties and other properties
entirely in his favour. Pursuant to the Gift Settlement Deed, the 2nd
respondent took possession of the property as absolute owner of the same.
On December 4, 2009 the 2nd respondent, in turn, executed a Registered
Gift Settlement Deed in respect of properties settled on him by his father,
in favour of his son, namely S.Arun Kumar. Since the petitioners have not
added S.Arun Kumar as party to the proceedings, the Suit is bad for non-
joinder of necessary parties. Accordingly, the 2nd respondent prayed to
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dismiss the Suit.
4. In the said Interlocutory Application, second respondent
commenced his evidence by examining himself as R.W.1 and Ex-R.1 was
marked. No evidence on the side of the petitioners.
5. The Trial Court after hearing both sides, concluded that the
petitioners have denied the execution of the said registered Gift Settlement
Deed during the cross-examination of R.W.1. Despite denial, the second
respondent did not examine the attesting witness to Ex-R.1 - registered
Settlement Deed and therefore, it has not been proved. Accordingly, the
Trial Court allowed the said Interlocutory Application and passed
Supplementary Preliminary decree in favour of the petitioners on March 2,
2016.
6. Feeling aggrieved, the 2nd respondent, preferred an appeal
in A.S.No.43 of 2017 on the file of the First Appellate Court. To be noted,
the petitioners had filed another Suit in O.S.No.151 of 2012 against the 2nd
respondent herein and his son S.Arun Kumar in respect of the properties
left by Subramania Gounder. The said Suit viz., O.S.No.151 of 2012 and
I.A.No.974 of 2012 were heard simultaneously and orders were passed on
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the same day i.e., on March 2, 2016 in favour of the plaintiff (Petitioners 2
to 4 herein). Hence, the 2nd respondent herein and his son S.Arun Kumar
filed an appeal in A.S.No.49 of 2017. In both the appeals, namely
A.S.No.49 of 2017 and A.S.No.43 of 2017, the common question involved
is whether the Gift Settlement Deed dated January 21, 2009 allegedly
executed by Subramania Gounder in favour of Samuvel @ Samivel is true
or not. The First Appellate Court jointly heard both the appeals and vide its
common Judgment and Decree dated August 8, 2019 concluded that the
respondents failed to prove the Registered Gift Settlement Deed dated
January 21, 2009 allegedly executed by Subramania Gounder in favour of
the respondents. Accordingly, dismissed both the appeals.
7. Feeling aggrieved, the second respondent preferred this
Second Appeal in S.A.No.173 of 2020 over A.S.No.43 of 2017. The 2nd
respondent and his son S.Arun Kumar preferred Second Appeal in
S.A.No.285 of 2020 over A.S.No.49 of 2017. To be noted, S.A.No.285 of
2020 was dismissed on merits on March 12, 2020 by the Hon'ble Single
Judge of this Court.
8. Mr.V.S.Kesavan, learned Counsel appearing for the
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appellant / second respondent submits that the petitioners have not
specifically denied the execution of the Registered Gift Settlement Deed
dated January 21, 2009. The second respondent – Samuvel @ Samivel has
not examined any attesting witness thereof. The Trial Court and the First
Appellate Court miserably failed to consider the said aspect and decreed
the Suit in favour of the petitioners and passed Preliminary Decree. The
learned Counsel fairly submits that S.A.No.285 of 2020 filed by the
present appellant against the Judgment and Decree dated August 8, 2019
passed in A.S.No.49 of 2017 was dismissed by this Court on March 12,
2020.
9. In response, Mr.R.Ganesh, learned Counsel appearing for
the respondents 1 to 3 herein submits that both the Courts concurrently
held that the respondents failed to prove the registered Gift Settlement
Deed dated January 21, 2009 said to have been executed by Subramania
Gounder in favour of the second respondent. Once the Settlement Deed is
held to be not proved, the Petitioner Nos.1 to 3 automatically become
entitled to a Decree for partition as prayed for, as the said finding removes
the clouds around their entitlement. He further submits that there is no
question of law, much less, substantial question of law involved in the
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Second Appeal. Accordingly, he prays to dismiss the Second Appeal.
10. This Court has considered both sides’ submissions.
Perused the records.
11. The Trial Court as well as the First Appellate Court
concurrently held that the respondents failed to prove the Registered
Settlement Deed dated January 21, 2009. The petitioners have stated that,
Subramania Gounder during his last years, has lost control of his senses
and remained as a dementia patient. In view of the specific stand taken by
the petitioners, the respondents ought to have examined at least one
attesting witness to prove the execution as well as the mental capacity of
the executant during the relevant time period. Since the respondents
miserably failed to examine any of the attesting witnesses, the Trial Court
as well as the First Appellate Court concurrently held that the Gift
Settlement Deed dated January 21, 2009 allegedly executed by Subramania
Gounder in favour of his son Samuvel @ Samivel has not been proved.
12. Considering the facts and circumstances of the case, this
Court is of the considered view that the Trial Court as well as the First
Appellate Court rightly recorded findings based on the evidence and
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documents available on record. There is no illegality or irregularity on the
same. There is no substantial question of law involved in this Second
Appeal. Further, as stated supra, this Court dismissed S.A.No.285 of 2020
wherein the question involved was the same as in this Second Appeal.
Hence, the Second Appeal deserves to be dismissed.
13. In the result, the Second Appeal is dismissed. Considering
the facts and circumstances of the case, there shall be no order as to costs.
Consequently, connected Civil Miscellaneous Petition is closed.
29.10.2024
Index : Yes
Neutral Citation : Yes
Speaking Order : Yes
TK
To
1.The Principal Subordinate Judge
Erode.
2.The Principal District Munsif
Erode.
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R. SAKTHIVEL, J.
TK
S.A.NO.173 OF 2020
29.10.2024
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