Madras High Court
K.Chandrakani vs S.Vijaya @ Viji on 3 March, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
A.S.(MD)No.4 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.03.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
and
THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN
A.S.(MD)No.4 of 2016
and
C.M.P.(MD)Nos.165 of 2016 & 15765 of 2024
1.K.Chandrakani
2.K.Maragatham
3.K.Vani Devi
4.K.Lakshmi Devi
5.K.Santhanamuthumari ... Appellants /
Defendants
Vs.
1.S.Vijaya @ Viji
2.Ambiga
3.Arasi ... Respondents /
Plaintiffs
1/10
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A.S.(MD)No.4 of 2016
Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code
against the judgment and decree passed in O.S.No.61 of 2012 on the file
of I Additional District Judge, Tuticorin dated 07.09.2015.
For Appellants : Mr.H.Thayumanaswamy
For Respondents : Ms.K.Shwathini
for Mr.G.Prabhu Rajadurai
JUDGMENT
(Judgment of the Court was made by G.R.Swaminathan J.)
Heard both sides.
2.The defendants in O.S.No.61 of 2012 on the file of the First
Additional District Judge, Tuticorin are the appellants herein. It was a
suit for partition. The suit property belonged to one Shanmugavel Nadar.
The said Shanmugavel Nadar passed away in the year 1975 leaving
behind a son (Kumaresan) and 7 daughters. Kumaresan got married to
the first appellant Chandrakani. Through the said wedlock, 4 sons and 7
daughters were born. Shanmugavel Nadar had executed a registered Will
on 05.04.1972. The suit properties were bequeathed by Shanmugavel
Nadar in favour of his grand children (born and to be born through his
son Kumaresan). Unfortunately, all the 4 grand sons born to Kumaresan
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and Chandrakani died intestate. They were also unmarried. All of them
had predeceased Chandrakani (first appellant herein). According to
Chandrakani, in view of the operation of the Will and demise of her 4
sons, the entire property had devolved on her. Chandrakani had executed
settlement deeds in favour of defendants 2 to 5. In other words, four
daughters of Chandrakani were the beneficiaries of her munificence.
The remaining 3 daughters who were left out filed a partition suit in
O.S.No.61 of 2012. The first plaintiff examined herself as PW1. One
Sathananthan was examined as PW2. Ex.P1 to Ex.P9 were marked.
Chandrakani examined herself as DW1. The second defendant who is
one of the daughters of Chandrakani was examined as DW2.
Ramachandra Boopathi was examined as DW3. Ex.B1 to Ex.B11 were
marked. After considering the evidence on record, the trial Court passed
preliminary decree on 07.09.2015 granting 3/12th share in favour of the
plaintiffs. Challenging the same, this appeal has been filed.
3.During the pendency of the appeal, Chandrakani passed away.
The appellants have filed C.M.P(MD)No.11239 of 2023 for reception of
additional evidence.
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4.The learned counsel for the appellants reiterated all the
contentions set out in the memorandum of grounds of appeal. He pointed
out that the Will executed by Shanmugavel Nadar was produced before
the Court below at the time of evidence. Unfortunately, it was not
formally marked. As a result, the Court below treated it as an unmarked
document and proceeded on the premise as if the Will executed by
Shanmugavel Nadar was not in the picture at all. He pointed out that in
the said Will, Shanmugavel Nadar had bequeathed properties in favour of
his daughters and that it was also duly acted upon. He therefore called
upon this Court to permit the appellants to bring additional evidence on
record for an opportunity to prove the Will executed by Shanmugavel
Nadar. He submitted that that alone would effectuate the actual intention
of the original testator.
5.Per contra, the learned counsel for the plaintiffs / respondents
submitted that the impugned judgment and preliminary decree passed by
the Court below do not call for interference.
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6.We carefully considered the rival contentions and went through
the evidence on record.
7.Two points arises for determination: a) Whether C.M.P(MD)No.
11239 of 2023 filed under Order 41 Rule 27 of CPC deserves to be
allowed; b) Whether the allocation of share made by the Court below is
justified.
8.The case of the appellants is centred on the premise that the Will
dated 05.04.1972 executed by Shanmugavel Nadar has already been
acted upon and that they should be given one more opportunity to prove
the same. According to the appellants, the said document was left
unmarked through inadvertence. We are not impressed with this
argument.
9.As rightly pointed out by Ms.Swathini, learned counsel for the
respondents, this exercise was already undertaken. The appellants had
filed I.A.No.74 of 2014 before the Court below for marking the
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document. The said IA was dismissed. Aggrieved by the same, the
appellants had filed C.R.P(PD)(MD)Nos.2557 to 2559 of 2014 and the
same were also dismissed. If the appellants had not filed any revision
before this Court questioning the refusal of Court below to mark the said
document, they can certainly raise it as a point of attack under Section
105 of CPC. But then, having challenged the order before the High
Court in revision and having been unsuccessful, it may not be open to the
appellants to once again file the very same document as additional
evidence.
10.The learned counsel for the respondents points out though this
issue was raised in the decision reported in (2015) 1 SCC 665 (Surjit
Singh & Others Vs Gurwant Kaur & Others), the point was left
undecided. But then, the learned Judge of this Court in S.A.Nos.1721
and 1858 of 2000 dated 21.02.2019 had held that if any revision is filed
challenging the interlocutory order and in the said revision, the
interlocutory order is confirmed, it is not open to the appellant to
challenge the said interlocutory order in the appeal filed against the
decree. It was also made clear that the interlocutory order which is
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confirmed by the High Court in revision will operate as res judicata. We
respectfully agree with the aforesaid legal proposition laid down in the
aforesaid decision. Therefore, the first point is answered against the
appellants and the petition for adducing evidence stands dismissed. If
the appellants had produced the original Will before us and had given
convincing explanation as to why it could not be produced before earlier
probably our approach would have been different. Since the very same
document is sought to be produced before us by way of additional
evidence we have chosen to negative the appellants' request.
11.The case of the appellant is based on the Will executed by
Shanmugavel Nadar. Since the appellants are the propounders of the
Will, they are obliged to prove the same in the manner laid down in the
Section 68 of the Indian Evidence Act, 1872. They had failed to do so.
Therefore, the Court below was justified in proceeding on the premise
that there was no Will in operation as far as the suit schedule properties
are concerned.
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12.It is not in dispute the the suit schedule properties belong to
Shanmugavel Nadar. Following his demise, it is devolved on his son
Kumaresan. Kumaresan passed away in the year 1989. He left behind
his wife, 4 sons and 7 daughters as his surviving legal heirs. Thus, the
suit properties devolved on as many as 12 persons. Each of them was
entitled to 1/12th share. All the four sons died unmarried and intestate.
Hence their shares devolved on the mother Chandrakani / first appellant
herein. The first appellant herein had 5/12th share in the suit schedule
properties. She was entitled to settle her share in the suit properties.
That is why the Court below held that the plaintiffs together were entitled
to 3/12th share. The approach adopted by the Court below is
arithmetically sound and legally correct. Interference is not warranted.
13.This Appeal Suit is dismissed accordingly. No costs.
Consequently, connected miscellaneous petitions are closed.
(G.R.S. J.,) & (M.J.R. J.,)
03.03.2025
NCC : Yes/No
Index : Yes / No
Internet : Yes/ No
MGA
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To:
I Additional District Judge,
Tuticorin.
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G.R.SWAMINATHAN, J.
and
M.JOTHIRAMAN, J.
MGA
03.03.2025
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