Madras High Court
Aireth vs Cadirone Marie Jeacquiline on 15 October, 2025
S.A. No. 545 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 22.09.2025 : Pronounced on 15.10.2025
CORAM
THE HONOURABLE Dr. JUSTICE R.N.MANJULA
S.A. No. 545 of 2011
and M.P. Nos. 1 & 2 of 2011
and C.M.P. Nos. 20983, 20987 and 20993 of 2011
Regina (died)
1.Aireth
2.Yvonne
3.Essa Aime ...Plaintiffs /Appellants
Vs.
Cadirone Marie Jeacquiline ...Defendant/Respondent
PRAYER: Second Appeal is filed under section 100 of the Code of Civil
Procedure, 1908, to set aside the judgment and decree dated 06.09.2010 made
in A.S. No. 115 of 2006 on the file of the III Additional District Judge,
Puducherry, confirming the judgment and decree dated 21.06.1996 made in
O.S. No. 291 of 1995 on the file of the I Additional Sub Judge, Pondicherry.
For Appellants : Mr.C.A.Diwakar
For Respondent : Mr.Sarathchandran for Mr.S.N.Ravichandran and
M/s.S.Sathiachandran
1/27
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
S.A. No. 545 of 2011
JUDGMENT
The Second Appeal has been preferred by the appellants /plaintiffs
challenging the judgment of the III Additional District Judge, Puducherry
dated 06.09.2010 in A.S. No. 115 of 2006 confirming the judgment of the I
Additional Sub Judge, Pondicherry dated 21.06.1996 in O.S. No. 291 of 1995.
2. The short facts pleaded by the plaintiffs in the plaint are as under:
2.1. The suit schedule properties originally belonged to one
Thambusamy, who is the father of the plaintiffs, by virtue of a
registered sale-deed dated 26.07.1962. The sale consideration was
paid by Thambusamy from the sale proceeds he had in his hands by
selling his other lands. Thambusamy was working as Bureau
Militarie at Pondicherry from the year 1921 and he got retired in the
year 1937. He was a pensionary till his death and post retirement,
he was working as Head Watchman in Swedeshi Cotton Mill,
Pondicherry from the year 1938 to 1949. The plaintiffs’ mother was
also working in Anglo French Textile, Pondicherry. The plaintiffs'
father was also working in the office of Percepeture Bureau from
the year 1950 to 1963 and he was in enjoyment of the properties
purchased by him till his death. One of the son of the Thambusamy,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
viz., Cadirone Pichamouthou, died on 20.07.1976 leaving behind
his wife, Cadirone Marie Jeaqueline, who is the respondent herein,
and his children.
2.2. The defendant filed a suit in O.S. No. 269 of 1978 on the file
of the II Additional Sub Judge at Pondicherry for declaring that the
sale-deeds dated 07.01.1954, 17.07.1957, 08.01.1958 and
26.07.1962 in the name of Thambusamy, which includes the above
suit properties, were benamis and it was actually purchased by her
husband Cadirone Pichamouthou.
2.3. Thambusamy filed written-statement by denying the
allegations. These plaintiffs were not added as parties to the above
suit.
2.4. During the pendency of the suit, the plaintiffs' father
Thambusamy fell sick and got bed ridden and he was affected with
paralysis. Taking undue advantage of the circumstances, the
defendant misrepresented and obtained thumb impression of
Thambusamy when he was in a fit state of mind and misrepresented
that he had to submit to decree.
2.5. On playing fraud upon the Court, a judgment was obtained in
O.S. No. 269 of 1978. The date of decree was on 23.06.1980. The
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
above decree will not bind the interest of plaintiffs in the suit
properties. Hence, the plaintiffs have filed a suit seeking declaration
that the plaintiffs are the absolute owners of the 1st item of the suit
schedule property as per Will dated 03.07.1978 and pass a
preliminary decree for partition of the 2nd item of the suit schedule
property into four (4) equal shares and allot 3/4th share to the
plaintiffs and declare that the judgment and decree dated
23.06.1980 passed by the II Additional Sub Judge, Pondicherry in
O.S. No. 269 of 1978 is void and it will not bind the plaintiffs and it
is inoperative in respect of 4th item of suit property in O.S. No. 269
of 1978.
3. The brief averments in the written statement of the defendant are
as under:
3.1. The deceased Thambusamy was the father-in-law of the
defendant. The defendant's husband Cadirone Pichamouthou was
employed in French Military Service and he was sending huge
amounts to his father to purchase the properties. So various
properties were purchased in the name of Thambusamy by using
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
the money sent by the defendant’s husband on 17.07.1951,
07.01.1964, 08.01.1958 and 26.06.1962. After retirement, when
Cadirone Pichamouthou came to India and enquired his father
about the purchase of the properties, Thambusamy apologized for
having purchased the properties in his own name and therefore, he
had executed a Will in favour of Cadirone Pichamouthou in the
year 1974. Unfortunately, Cadirone Pichamouthou pre-deceased his
father in the year 1976.
3.2. Thereafter, the plaintiffs had the custody of their father. On
the misguidance of the plaintiffs, Thambusamy started to interfere
with the peaceful possession and enjoyment of the defendant in the
suit property. Hence, the defendant along with their 6 minor
children had filed O.S. No. 269 of 1978 on the file of the II
Additional Sub Judge, Pondicherry as against Thambusamy.
3.3. Even though Thambusamy had appeared through a counsel
and filed a written statement in the year 1980, he wanted to have a
peaceful death and he confessed the whole truth and hence, on
23.06.1980 he submitted to decree. Accordingly, the suit was
decreed. All other allegations stated in the plaint are false. Hence,
the suit should be dismissed.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
4. On the basis of the above pleadings, the following issues are framed:-
“1.Whether the suit has not been properly valued and correct
court fee has not been paid?
2.Whether this suit is barred by limitation?
3.Whether the Judgment and Decree in O.S. No. 269 of 1978 dated
23.06.1980 passed by the II Additional Sub Court, Pondicherry
was passed based on the unconscious endorsement of submitting
to decree made by the Thambusamy the defendant in that suit? If
so, whether the said Judgment and Decree are null and void?
4.Whether the suit properties were purchased by Thambusamy
from out of his own income?
5.Whether the deceased Thambusamy bequeathed item No.1 of the
suit properties in favour of the plaintiffs as per the Will dated
03.07.1978? If so, whether the said Will is valid?
6.Whether the 2nd item of the suit property is liable for partition?
If so whether the plaintiffs are entitled for 3/4th share in it?
7.Whether the plaintiff is entitled to get declared that the judgment
and decree dated 23.06.1980 of II ASJ Court Pondicherry as null
and void?
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
8.Whether the plaintiffs are entitled to get a declaration that they
are the absolute owners of the I item of the suit property?
9.Whether the plaintiffs are entitled for a preliminary for partition
of the second item of the suit properties?
10.To what relief the plaintiff is entitled?
5. During the course of trial, on the side of the plaintiffs, the 3rd plaintiff
was examined as P.W.1 and Exs.A1 to A18 documents were marked and on
the side of the defendant, two witnesses were examined as DW1 and DW2 and
Exs.B1 to Ex.B34 were marked.
6. On the conclusion of trial, considering the evidences available on both
sides, the trial Court had dismissed the suit. Hence, the plaintiffs preferred a
First Appeal before the First Appellate Court. The First Appellate Court has
dismissed the said First Appeal by confirming the judgment of the trial Court.
Aggrieved over the same, the plaintiffs have filed the present Second Appeal.
7. The second appeal has been filed by raising the following substantial
questions of law.
1. whether the suit seeking to set aside the judgment and decree in O.S.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
No. 269 of 1978 dated 23.06.1980 is barred by law of limitation?
2. Whether the admission of the defendant in O.S. No. 269 of 1978 and the
subsequent judgment in O.S. No. 269 of 1978 dated 23.06.1980 would
be protected under illustration (e) of Section 114 of the Indian Evidence
Act, 1872?
8. Submission of the appellants:-
8.1. The learned counsel for the appellants submitted that the trial
Court has relied on the presumption under Section114(e) of the
Indian Evidence Act by ignoring the facts that it is rebuttable
presumption. The impugned judgment is not a judgment within the
definition of Section 2(9) of Code of Civil Procedure and even if it
is an exparte judgment under Order VIII Rule 10, it should follow
the requirement of Section 2(9) read with Order XX Rule 4(2) of
Code of Civil Procedure.
8.2. The judgment dated 23.06.1980 does not apparently satisfy
the requirement of Order 20 Rule 4(2) of Code of Civil Procedure
read with Sections 2(9) and 33 of the Code of Civil Procedure.
Nothing is seen in the judgment clarifying the identity of the party
by the counsel. In fact, the counsel for the defendant in O.S.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
No.269 of 1978 has reported no instructions. The impugned
judgment is surrounded by suspicion.
8.3. The judgment was kept unimplemented and it came to the
knowledge of the appellants only in the year 1994-1995 when the
respondent started to obstruct appellants’ enjoyment of the
property. The Will dated 14.09.1974 is not valid and that was
denied by Thambusamy himself. Thambusamy was all along
fighting in the suit by filing the written statement. Thambusamy has
got his own valuables to purchase the properties and that was not
properly appreciated.
9. Submission of the respondent:-
9.1. The learned counsel for the respondent submitted that even
though the appellants claimed a Will dated 03.07.1978, that was not
produced before the Courts below. The respondent has proved the
Will executed by the Thambusamy in favour of her husband by
examining the surviving attestors. The appellants have filed a suit
after 15 years from the date of the respondent’s father-in-law and
17 years from the date of institution of the suit in OS. No. 269 of
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
1978.
9.2. The father-in-law of the respondent, viz., Thambusamy has
submitted to decree by making an endorsement in the open Court
and later in the year 1981, he passed away. The appellants ought to
have filed a suit within three years from the date of the judgment,
i.e., 23.06.1980, but they have filed a suit in the year 1995, which is
barred by limitation. There is no specific pleading in the plaint
about the date of knowledge.
9.3. The validity and the genuineness of the endorsement and the
sound and disposing state of mind of Thambusamy were analyzed
in detail by the Trial Court in its judgment. When the presumption
under Section114(e) of the Indian Evidence Act is in favour of the
respondent, it is for the appellants to discharge their burden of
rebutting the presumption, but they have not done so. This is not a
matter of compromise, but a submission to decree by Thambusamy
in the open Court.
9.4. The alleged Will dated 03.07.1978 has not been probated as
per Section 213 of the Indian Succession Act as it is said to have
been executed by a person belonging to a Christianity.
Thambusamy originally executed a Will dated 14.09.1974
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
bequeathing the properties in favour of his son, viz., Cadirone
Pichamouthou, who is the husband of the respondent. The husband
of the respondent pre-deceased his father. As the father of the
appellants have submitted to decree on 23.06.1980, the alleged Will
dated 03.07.1978 will automatically get revoked as their father did
not have any property to bequeath.
9.5. As the respondent is in possession and enjoyment of the
properties, the suit ought to have been properly valued and proper
court fee ought to have been paid, but that was not done by the
appellants.
9.6. As the Trial Court and the First Appellate Court have rightly
appreciated the facts and law, the second appeal has to be
dismissed.
10. The relationship between the appellants and the respondent is not
denied. The contention of the respondent in the earlier suit in O.S. No. 269 of
1978 is that the property of that suit is purchased by her husband by sending
money to his father Thambusamy, but Thambusamy had purchased the
properties in his own name. Even though Thambusamy had written a Will
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
dated 14.09.1974 in favour of the husband of the respondent, he pre-deceased
his father. As Thambusamy lived under the custody of his daughters, he
started to disturb the enjoyment of the respondent in the suit property and that
had paved the cause of action for the earlier suit in O.S. No. 269 of 1978.
11. Though Tahmbusamy, who is the father in law of the respondent, had
initially contested the suit by filing the written statement, he later submitted to
decree and on his submission made on 23.06.1980, a decree had been passed
in favour of the respondent and her children. In fact, Thambusamy died on
18.06.1981. After 15 years from the death of Thambusamy and 17 years from
the date of institution of the suit in O.S. No. 269 of 1978 and 15 years from
the date of decree, i.e., 23.06.1980, the appellants had filed a suit in the year
1995.
12. There is no doubt that the suit ought to have been filed within 3 years
from the date of decree i.e., 23.06.1980. However, the appellants claimed that
they had the knowledge about the decree itself only in the year 1994-1995 and
the suit had been filed within the period of limitation. On perusal of the
pleadings made in the plaint filed by the appellants, especially in the cause of
action paragraph, it had not been stated that they came to know about the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
existence of the decree in O.S. No. 269 of 1978 dated 23.06.1980 in the year
1994 and hence, the cause of action started to run from the year 1994. Even in
the other pleadings, there is no specific averment that the appellants had come
to know about the decree only in the year 1994-1995. The appellants have
contended that they have been paying property tax from the year 1978 to 1995
and thereafter, they came to know about the decree. Even in the said vague
statement made in the plaint, it is not stated what prompted them to know
about the decree somewhere in the year 1994-1995. The third plaintiff, who
was examined as PW1, has also not stated anything in chief examination that
the appellants came to know about the judgment only in the year 1994-1995.
13. The brother of the appellants, who is the husband of the respondent, has
been working in French Military Service and his father himself had written a
Will in his favour in the year 1974, but he pre-deceased his father and hence,
the circumstances have changed. In view of that, the respondent was prompted
to file a suit to save her interest and interest of their children in the suit
properties.
14. In the evidence of PW1, who is the 3rd plaintiff in O.S. No. 291 of 1995,
she has stated that after the respondent’s husband died, there was some quarrel
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
arose between the respondent and Thambusamy, who is her father, and
thereafter, her father lived with her till his death. Though it is claimed by the
PW1 that Thambusamy was staying at her home and he was not going to
Court, she has stated in her evidence that the respondent had taken
Thambusamy and obtained signature according to her convenience. So, the
above evidence would only mean that Thambusamy was in the custody of the
3rd plaintiff in O.S. No. 291 of 1995, but he was able to move from one place
to another place. She has further given the explanation that she came to know
that the respondent had taken her father and when she came back from her
school in the evening, she was informed about that incident by her neighbours.
Despite the 3rd plaintiff in O.S. No. 291 of 1995 had obtained information
from the neighbours about her father’s outing with the respondent, she did not
choose to enquire her father about the same.
15. Further, in the cross-examination, she has stated that one Rajakannu
was working at her house and through him she came to know about the same
in the year 1981 itself. When the father of the 3rd plaintiff in O.S. No. 291 of
1995 was not in cordial terms with the respondent and during that time, if the
3rd plaintiff in O.S. No. 291 of 1995 came to know that the respondent had
taken her father somewhere during her absence, her spontaneous reaction
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
would be to enquire her father about the events that had taken place during her
absence. Her indifference would only show that she did not intend to enquire
her father only because he was able to take his own decision. Both the Courts
below had made an observation that Thambusamy had no confusion in his
mind about settling the suit property in O.S. No. 269 of 1978 in favour of his
son and he also expressed his desire by executing a Will in the year 1974
itself. Subsequent to the death of his son, when he came to the custody of the
appellants, his mind was corrupted by the appellants and hence, it has
necessitated the respondent to file a suit to declare that the properties belonged
to her husband. As Thambusamy later realized it is not fair on his part to deny
the entitlement of the respondent and her children, he came forward and
submitted to decree.
16. It has already been observed that the 3rd plaintiff in O.S. No. 291 of
1995 despite having knowledge about her father's involvement with the
respondent in the year 1980 and he went out with her during her absence, she
did not bother to ask him regarding that. It appears that the appellants also did
not mind to make any counter claim to the suit properties involved in O.S. No.
269 of 1978. Only as an after thought, the suit in O.S. No. 291 of 1995 had
been filed all of a sudden saying that the decree passed in the suit in O.S. No.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
269 of 1978 is not valid.
17. There are probabilities established by the respondent from the evidence
adduced by PW1 during her cross-examination that she could have the
knowledge about the suit proceedings in the year 1980. In such case, the
appellants ought to have established the contrary. The appellants neither made
any specific averments in the plaint that they had the knowledge about the
judgment and decree passed in O.S. No. 269 of 1978 nor let in any evidence to
show that they had the knowledge about the decree only in the year 1994-
1995. Without establishing the fact that the appellants came to know about the
decree only in the year 1994-1995, the appellants cannot claim that the suit is
filed within the period of their knowledge and hence, within limitation. In the
absence of any proof for the date of knowledge, the period of limitation will
start to run from the date of decree, i.e., on 23.06.1980. As the suit has not
been filed within 3 years from the year 1980, it is clearly barred by limitation
and hence, the findings of the both the Courts below on this aspect does not
require any interference. In view of the above discussion, the first question
of law is answered against the appellants.
18. The next contention of the appellants is that the judgment and decree
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
dated 23.06.1980 in O.S. No. 269 of 1978 is not protected under illustration of
Section 114(e) of the Indian Evidence Act, which reads as follows:-
“114. Court may presume existence of certain facts.-....
The Court may presume-
(a)….
(b)….
(c)….
(d)….
(e) that judicial and official acts have been regularly performed;
....
But the Court shall also have regard to such facts as the
following, in considering whether such maxims do or do not apply
to the particular case before it: ––
....
as to illustration (e) –– a judicial act, the regularity of which is in
question, was performed under exceptional circumstances;”
19. Hence, it must be presumed that the judicial and official acts have been
regularly performed, unless there is evidence to the contrary. As there is a
rebuttable presumption, opposing party can present evidence to prove that the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
act was not performed as presumed.
20. Even though the appellants have claimed that the judgment and decree
dated 23.06.1980 has been obtained by fraud, the fact remains that the
judgment and decree passed by the II Additional Sub Court, Pondicherry are
very much genuine. In the judgment, which has been marked as Ex.A16, the
Court had observed that when the suit in O.S. No. 269 of 1978 was taken on
23.06.1980, the counsel for the defendant therein filed a memo reporting no
instructions from his client. However, the Court observed that the plaintiff
No.1 therein is present and represented her minor children and the defendant
therein is present and submitted to decree.
21. It is the contention of the appellants that in O.S. No. 269 of 1978, the
counsel did not identify the defendant to the Court. In fact, the counsel for the
defendant had reported no instructions on 23.06.1980, but the defendant was
very much present. It is not as though the counsel for defendant had reported
no instructions and the defendant had been to the Court on a different date and
hence, he could not have been identified by his counsel. The counsel’s
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
withdrawal of vakalat and the defendant's presence had occurred on the same
day and hence, it is not necessary to presume the impossibility that the counsel
for the defendant did not identify the defendant, viz., Thambusamy. In fact,
the failure to instruct the counsel by the defendant itself would show that he
did not have any inclination to contest the suit, but only to submit to decree.
The important event unfolded before the Court on 23.06.1980 is that the
defendant's counsel had reported no instructions, but the plaintiffs and the
defendant were present and the defendant had submitted to decree and hence,
that suit had been decreed subsequently.
22. As the above proceedings of the Court have been protected under
illustration 114(e), it can be readily presumed that the judicial and official acts
had been performed regularly. If there are probabilities against such initial
presumption is available to the respondent in respect of Ex.A16 and Ex.A17,
viz., judgment and decree, the burden of rebutting the same would be on the
shoulders of the appellants, but the appellants did not prove before the Court
that their father did not present on the alleged day and the plaintiffs in that suit
had misled the Court.
23. In fact, the evidence of the PW1 in cross-examination adds more
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
strength to the contentions of the respondent. As stated already, the PW1 had
in the cross-examination deposed that the respondent had taken Thambusamy
with her during the absence of the PW1, who came to know about the same
through Rajakannu. So, there is every possibility and probability, apart from
the benefit of presumption under Section 114(e), that Thambusamy could have
been present in that Court in order to express his intention of submitting to
decree. Even after Ex.A16 and Ex.A17, viz., judgment and decree, were
passed, Thambusamy was alive for one more year. During that time, he did
not care to file any proceedings to set aside the decree on the allegation that
the respondent had committed fraud on him. In the absence of any rebutting
evidence, the Courts, viz., the Trial Court and the First Appellate Court, do not
have any other go, except to subscribe to the benefit of initial presumption
under Section 114(e) by concluding it as a conclusive proof about the
regularity of the judicial and official acts concerning the decree in O.S. No.
269 of 1978.
24. It is to be noted that the judgment was passed on compromise as the
judgment passed in a submission to decree. It is needless to state that what
transpired at the hearings and so recorded in the judgment are conclusive
proof of the facts so stated. If a party thinks to contradict the same, the party
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
has to approach the very same judge in case there is any error. If nothing is
pointed as to the error, there ends everything.
25. In respect of the above aspect, I feel that it is appropriate to cite the
judgment of the Supreme Court in State of Maharashtra Vs. Ramdas
Shrinivas Nayak and Another reported in (1982) 2 SCC 463. In the said case,
it is held that matters of judicial record are unquestionable and they are not
open to doubt and we are bound to accept the statement of the judges recorded
in the judgments. In this aspect, it is essential to extract the relevant paragraph
of the judgment:-
“4. When we drew the attention of the learned Attorney-
General to the concession made before the High Court, Shri A.K.
Sen, who appeared for the State of Maharashtra before the High
Court and led the arguments for the respondents there and who
appeared for Shri Antulay before us intervened and protested that
he never made any such concession and invited us to peruse the
written submissions made by him in the High Court. We are afraid
that we cannot launch into an enquiry as to what transpired in the
High Court. It is simply not done. Public policy bars us. Judicial
decorum restrains us. Matters of judicial record are
unquestionable. They are not open to doubt. Judges cannot be
dragged into the arena. “Judgments cannot be treated as mere
counters in the game of litigation.” [Per Lord Atkinson
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
in Somasundaram Chetty v. Subramanian Chetty, AIR 1926 PC
136 : 99 IC 742] We are bound to accept the statement of the
Judges recorded in their judgment, as to what transpired in court.
We cannot allow the statement of the Judges to be contradicted by
statements at the Bar or by affidavit and other evidence. If the
Judges say in their judgment that something was done, said or
admitted before them, that has to be the last word on the subject.
The principle is well-settled that statements of fact as to what
transpired at the hearing, recorded in the judgment of the court,
are conclusive of the facts so stated and no one can contradict
such statements by affidavit or other evidence. If a party thinks
that the happenings in court have been wrongly recorded in a
judgment, it is incumbent upon the party, while the matter is still
fresh in the minds of the Judges, to call the attention of the very
Judges who have made the record to the fact that the statement
made with regard to his conduct was a statement that had been
made in error. [ Per Lord Buckmaster in Madhu Sudan
Chowdhri v. Chandrabati Chowdhrain, AIR 1917 PC 30 : 42 IC
527] That is the only way to have the record corrected. If no such
step is taken, the matter must necessarily end there. Of course a
party may resile and an appellate court may permit him in rare and
appropriate cases to resile from a concession on the ground that
the concession was made on a wrong appreciation of the law and
had led to gross injustice; but, he may not call in question the very
fact of making the concession as recorded in the judgment.”
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
26. Hence, if a party thinks that the happenings in court have been wrongly
recorded in a judgment, it is incumbent upon the party to call the attention of
the very Judges who have made the record to the fact that a statement had
been made in error and if no such step is taken, the matter must necessarily
end there. Since the party who has submitted to decree has not raised any
contention that there was some clerical error bound to be corrected, no other
persons can question the genuineness and the validity of the judgment at any
later point of time except in extraneous circumstances. Even in such case, such
a suit should be brought within a period of limitation and on the case in hand,
the suit itself has been hopelessly barred by limitation. In such
circumstances, the second question of law is answered against the
appellants.
27. Even though the learned counsel for the appellants submitted that the
impugned judgment and decree will not fall under the definition of judgment
under Section 2(9) read with Order XX Rule 4(2) of Code of Civil Procedure,
the second appeal had not been admitted on the said ground and no substantial
question of law has been made on the alleged shortfall.
28. Decreeing the suit on submission of the defendant is a separate class of
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
disposal which is distinguishable from an exparte decree and the decree
passed after contest. Hence, the appellants need not construe the type of
decree passed in that suit as that of the exparte decree or any other decree and
argue that the essential features of the judgment and decree is found to be
missing. As already stated, even such errors ought to have been pointed out by
the parties to the proceedings and brought to the knowledge of the very same
judge, when the things were in the memory of the said judge and not after
several years by persons, who are not party to the suit.
29. Much ado was made about the Will said to have been executed by
Thambusamy in favour of the appellants on 03.07.1978, but that Will is not
valid in the eyes of law as it has not been probated as per the requirements of
Section 213 of the Indian Succession Act and the original Will had been
produced before the Court. Once Thambusamy had submitted to a decree in
O.S. No. 269 of 1978, there remains no property to be bequeathed through the
Will dated 03.07.1978. The act of Thambusamy by submitting to a decree
subsequent to the date of the Will dated 03.07.1978 only sends a message that
Thambusamy has revoked his earlier Will as he has chosen to confirm the title
of the respondent over the suit properties. So, the alleged Will dated
03.07.1978 cannot be of any use in view of the judgment passed in O.S. No.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
269 of 1978.
30. It is also reiterated that this Court has not admitted any substantial
question of law as to arguments now advanced by the learned counsel for the
appellants with regard to the alleged non-fulfilment of the requirement of the
judgment as defined under Section 2(9). As the defendant in O.S. No. 269 of
1978 did not contest the matter and he has submitted to decree, the judgment
and decree does not fall under the type of judgment, which requires to set
down the points for determination and to deal with the same.
31. As the Courts below had rightly appreciated the merits of the matter and
had chosen to disallow the suit and the first appeal preferred by the appellants,
the judgment and decree passed by the First Appellate Court confirming the
judgment and decree passed by the Trial Court does not require any
interference.
32. In the result, the second appeal is dismissed and the judgment dated
06.09.2010 of the First Appellate Court in A.S. No. 115 of 2006 confirming
the judgment dated 21.06.1996 of the Trial Court in O.S. No. 291 of 1995 is
confirmed. No costs. Consequently, connected petitions are closed.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
15.10.2025
Index : Yes/No
Speaking order : Yes/No
NCC : Yes/No
Maya
To
1. The III Additional District Judge, Puducherry.
2. The I Additional Sub Judge, Pondicherry.
3. The Section Officer,
V.R. Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
Dr.R.N.MANJULA, J.
Maya
Dated : 15.10.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 15/10/2025 01:23:58 pm )
