BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
23. 07.2014 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL (MD) No.110 of 2009 and MISCELLANEOUS PETITION (MD) Nos.2 of 2009 And 1 of 2010 1.Santhanalakshmi 2.Muthuramakrishnan 3.Vinod Kannan .. Appellants/ Respondents/Defendants Vs. 1.Jeyaraman 2.Thangasamy .. Respondents/ Respondents/Plaintiffs Prayer Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 against the Judgment and decree dated 06.03.2008 passed in Appeal Suit No.18 of 2006 and Cross Objection by the Additional District Court (Fast Track Court No.II), Thoothukudi, confirming the Judgment and decree dated 27.03.2006 passed in Original Suit No.28 of 2005 by the Sub Court, Kovilpatti. !For Appellants : Mr.M.P.Senthil ^For Respondents : Mr.T.Srinivasa Raghavan :JUDGMENT
This Second Appeal has been directed against the concurrent Judgments and decrees passed in Original Suit No.28 of 2005 by the Sub Court, Kovilpatti and in Appeal Suit No.18 of 2006 by the Additional District Court (Fast Track Court No.II), Thoothukudi.
2. The respondents 1 and 2 herein as plaintiffs have instituted Original Suit No.28 of 2005 on the file of the trial Court for the reliefs of declaration and perpetual injunction in respect of the suit first item and also for the reliefs of declaration and recovery of possession in respect of the suit second item, wherein the present appellants have been shown as defendants.
3. In the plaint it is averred that the suit properties and some other properties are originally belonged to the paternal grandfather of the plaintiffs. One Muthulakshmi Kannappan is the paternal aunt of the plaintiffs and she has been given in marriage to one Amirthasamy. The erstwhile Zamindhar (paternal grandfather of the plaintiffs) has permitted the said Amirthasamy to reside in the suit first item and to that extent, a document has been executed, but no title has been passed in favour of the said Amirthasamy. The said Amirthasamy has executed a sale deed, dated 23.02.1938 in favour of his wife, wherein he asserted that the suit first item has been given to him on the basis of permission. After the demise of the paternal grandfather of the plaintiffs, the father of the plaintiffs have effected a partition by virtue of a partition deed, dated 02.12.1959, wherein the suit first item has been given absolutely in favour of the first plaintiff and the suit second item has been given to the second plaintiff. The said Muthulakshmi Kannappan and his younger daughter, by name, Ramamirtham have decided to settle somewhere else and due to that a registered release deed has come into existence on 12.01.1994 in respect of the suit first item. The first defendant is the another daughter of Muthulakshmi Kannappan and she is not having any manner of right, title and interest in respect of the suit first item. Now, the defendants have colluded together and tried to raise a novel claim in respect of the suit items. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint.
4. In the written statement filed on the side of the first defendant, it is averred that the suit properties are not the ancestral properties of the paternal grandfather of the plaintiffs, by name, Sri Raja Jega Veerarama Muthukumara Venkateswara Yettappa Naicker and it is also equally false to aver that he passed away on 28.05.1934. The relationship mentioned in the plaint is correct. The measurements given to the suit first item are erroneous. The plaintiffs have encroached some properties. The partition deed, dated 02.12.1959 is not binding upon the first defendant. It is also equally false to aver that Muthulakshmi Kannappan, Ramamirtham and the first defendant have agreed to vacate the suit first item. The plaintiffs are not the owners of the suit properties and therefore, they are not entitled to get the reliefs sought for in the plaint.
5. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has decreed the suit as prayed for. Against the Judgment and decree passed by the trial Court, the defendants as appellants have preferred Appeal Suit No.18 of 2006 on the file of the first Appellate Court.
6. The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, has dismissed the appeal whereby and whereunder confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the defendants as appellants.
7. At the time of admitting the present Second Appeal, the following substantial questions of law have been settled for consideration:- a) Whether the Courts below are right in not adverting to the proved and admitted fact that Muthulakshmi Kannappan has enjoying the property having a pre-existing right ever since 1938 and that right has become in absolute right by virtue of Section 14(1) of the Hindu Succession Act?. b) Whether the Courts below are right in not adverting to the recitals under Ex.A.2 declaring the rights of Muthulakshmi Kannappan and her husband and enjoyment only on the basis of the right and that right become absolute right by reason of the provisions of Hindu Succession Act, 1956?. 8. The sum and substance of the case of the plaintiffs is that the suit properties and some other properties are originally belonged to paternal grandfather of the plaintiffs, by name, Sri Raja Jega Veerarama Muthukumara Venkateswara Yettappa Naicker and after his demise, a partition has come into existence between the plaintiffs and others, wherein the suit first item has been allotted to the share of the first plaintiff and suit second item has been allotted to the share of the second plaintiff. One Muthulakshmi Kannappan is the paternal aunt of the plaintiffs and the original owner of the suit properties by name, Sri Raja Jega Veerarama Muthukumara Venkateswara Yettappa Naicker has given necessary permission to his would be son-in-law by name, Amirthasamy so as to reside in the suit first item and subsequently, he sold the said right of enjoyment in favour of his wife by virtue of a sale deed and thereafter, the said Muthulakshmi Kannappan and others have executed a release deed, dated 12.01.1994. Under the said circumstances, the defendants are not having proprietary interest over the suit properties. Now, the defendants have colluded together and raised a novel title over the suit properties. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint.
9. In the written statement filed on the side of the first defendant, all the material averments made in the plaint are specifically denied and even it is stated to the effect that the paternal grandfather of the plaintiffs is not the owner of the suit properties.
10. The Courts below have concurrently rejected the defence putforth on the side of the appellants/defendants.
11. The learned counsel appearing for the appellants/defendants has sparingly contended that the suit properties have been given in favour of Muthulakshmi Kannappan, who is none other than the mother of the first defendant, by the original owner of the suit properties and as per Section 14(1) of the Hindu Succession Act, 1956, she has become absolute owner of the same and therefore, the plaintiffs are not having locus standi to institute the present suit and since the said Muthulakshmi Kannappan has passed away, the first defendant and his sisters have become absolute owners of the suit properties and the Courts below, without considering the above aspect, have erroneously rejected the defence putforth on the side of the first defendant and therefore, the concurrent Judgments and Decrees passed by the Courts below are liable to be interfered with.
12. In order to dispel the contention putforth on the side of the appellants/defendants, the learned counsel appearing for the respondents/plaintiffs has contended that the suit properties and some other properties are originally belonged to the paternal grandfather of the plaintiffs and during his lifetime, he permitted his would be son-in-law by name, Amirthasamy to reside in the suit properties and subsequently, the said Amirthasamy has executed a sale deed in right in respect of his right of enjoyment in favour of his wife by name Muthulakshmi Kannappan and thereafter, the said Muthulakshmi Kannappan and her daughters have jointly released their right in favour of the father of the plaintiffs. Under the said circumstances, the defendants are not having any proprietary interest over the suit properties and since the defendants have had made arrangements to deny the title of the plaintiffs, the present suit has been instituted for the reliefs sought for in the plaint and the Courts below, after considering the evidentiary value of the documents filed on the side of the plaintiffs, have rightly rejected the defence putforth on the side of the defendants and therefore, the concurrent Judgments and Decrees passed by the Courts below do not warrant interference.
13. The specific case putforth on the side of the plaintiffs is that the suit properties and some other properties are originally belonged to paternal grandfather of the plaintiffs and the same has been specifically denied on the side of the first defendant. Since the said aspect has been specifically denied on the side of the first defendant, it is needless to say that the defendants are precluded from raising a contention to the effect that the original owner (paternal grandfather of the plaintiffs) has given the suit properties in favour of his daughter, by name, Muthulakshmi Kannappan. Under the said circumstances, by virtue of Section 14(1) of the Hindu Succession Act, 1956, she has become absolute owner of the same and further, there is no specific averments in the written statement with regard to the said aspect.
14. Since the alleged title of the plaintiffs has been denied on the side of the defendants, the Court has to look into as to whether the plaintiffs are having title to the suit properties.
15. On the side of the plaintiffs as many as six documents have been marked as Exs.A.1 to A.6. Ex.A.1 is a partition deed, 02.12.1959, wherein the suit first item has been allotted to the share of the first plaintiff and the suit second item has been allotted to the share of the second plaintiff. Ex.A.2 is a registered copy of sale deed, dated 23.02.1938, wherein it has been clearly stated that Amirthasamy has sold his right of enjoyment in favour of his wife Muthulakshmi Kannappan. Further in Ex.A.2, it is stated to the effect that the vendor has been permitted to enjoy the suit properties by its erstwhile owner. Ex.A.3 is an agreement alleged to have been executed by the said Muthulakshmi Kannappan and her daughter, by name, Ramamirtham in respect of portion of the suit properties. Ex.A.4 is a release deed, dated 12.01.1994 alleged to have executed by Muthulakshmi Kannappan and her daughter by name Ramamirtham in favour of the plaintiffs.
16. From the conjoint reading of Exs.A.1 to A.4, the Court can easily discern that the suit properties are originally belonged to paternal grandfather of the plaintiffs and he permitted his would be son-in-law by name Amirthasamy to enjoy the suit properties and only on that basis, the said Amirthasamy has executed Ex.A.2 and subsequently, her wife by name Muthulakshmi Kannappan and one of his daughter, by name Ramamirtham have executed Exs.A.3 and A.4. Since Exs.A1 to A.4 have been filed on the side of the plaintiffs, the Court can easily come to a conclusion that the plaintiffs are having title to the suit properties.
17. It has already been pointed out that the only argument advanced on the side of the appellants/defendants is that by virtue of Section 14(1) of the Hindu Succession Act, 1956, the said Muthulakshmi Kannappan has acquired absolute right over the suit properties and in fact the said aspect has not been pleaded in the written statement and further the husband of Muthulakshmi Kannappan by name Amirthasamy has been permitted to enjoy the suit properties by the erstwhile owner of the same. Under the said circumstances, provisions of Section 14(1) of the Hindu Succession Act, 1956 cannot be invoked. Therefore, viewing from any angle, the contention putforth on the side of the appellants/defendants are of no use and all the substantial questions of law settled on the side of the appellants/defendants are not having substance at all and altogether the present second appeal deserves to be dismissed.
18. In fine, this second appeal deserves dismissal and accordingly is dismissed without costs. The concurrent Judgments and decrees passed by the Courts below are confirmed. The appellants/defendants are given six months to vacate the suit second item. Consequently, connected Miscellaneous Petitions are dismissed. To 1.The Additional District Court (Fast Track Court No.II), Thoothukudi. 2.The Sub Court, Kovilpatti.