Madras High Court
B.Tamilselvan vs Balasubramanian on 23 January, 2012
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23/01/2012 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN SA(MD)No.398 of 2008 MP.Nos.1/2008, 1/2009 and 1/2011 B.Tamilselvan ... Appellant Vs 1.Balasubramanian 2.Poobalan 3.Kannathal 4.Subramanian ... Respondents Prayer This Second Appeal is filed against the Judgement and Decree dated 28.06.2007 passed in AS.No.8/2007 by the learned District Judge, Sivagangai, partly allowing the Judgement and Decree dated 22.6.2004 passed in OS.No.41/2003 by the learned District Munsif, Sivagangai. !For Appellant ... Mr.A.Arumugam for Mr.M.Ajmal Khan ^For Respondents... Mr.S.P.Maharajan :JUDGEMENT
This Second Appeal is filed by the Plaintiff against the Judgement and Decree dated 28.06.2007 passed in AS.No.8/2007 by the learned District Judge, Sivagangai, though confirming the Decree for partition, but modifying the shares of the parties allotted by the learned District Munsif, Sivagangai in OS.No.41/2003 dated 22.6.2004.
2. The Plaintiff filed the above said suit, claiming a share of 15/45th (1/3rd share) in the items 1 and 2 of the suit property situated in Kuruthangudi Village, Vannigudi group of Sivagangai Taluk and for permanent injunction restraining the 4th Defendant from interfering with the peaceful possession and enjoyment of the suit property by the Plaintiff.
3. The undisputed genealogy graph of the family is given under:-
4. The case of the Plaintiff is that the suit property belonged to Ramayee, having purchased the 1st item by the sale deed dated 13.03.1935 in Ex.A2 and the 2nd item originally belonged to Arulandu and the same was mortgaged to Kuttal, the mother of Ramayee, which was not redeemed and hence, Kuttal and after her, Ramayee was in possession and enjoyment. The patta stood in the name of Ramayee.
5. The said Ramayee died intestate in the year 1969. Her first husband is Muthukonar. After his death, she got married to one Alagupillai. Through her first husband, she begot one daughter, namely, Soundaram. Through her second husband, namely, Alagupillai, she got a daughter and a son, namely, Poomayil and Rajangam. After the death of Ramayee, who died intestate, the properties devolved upon Soundaram, Poomayil and Rajangam, each taking 15/45, that is, 1/3rd share in the properties.
6. Poomayil died early in the year 1973. Her share of 1/3rd devolved upon her two sons and two daughters, namely, Tamil Selvan (Plaintiff), Boopalan (2nd Defendant), Indra Devi and Kannathal (3rd Defendant) and her husband Balasubramanian (1st Defendant) and each got 1/15 share in 1/3rd share of Poomayil.
7. Rajangam died in the year 1974. He was unmarried. It is the specific case of the Plaintiff that he executed a Will dated 2.8.1973 bequeathing his properties on his sister's children, namely the Plaintiff, Defendants 2 and 3 and Indra Devi. Therefore, the Plaintiff got 5/45th share in the Rajangam's property.
8. As far as Soundaram is concerned, she was a divorcee. She had no issues. She also executed a Will dated 22.8.1985 bequeathing her properties in favour of the Plaintiff, Defendants 2 and 3. She died in the year 1987. In the share of Soundaram i.e. 15/45th share, the Plaintiff got 5/45th share.
9. It is also stated in the plaint that the Plaintiff and the Defendants orally divided the other properties except the suit items 1 and 2 and they are in possession and enjoyment of their respective share as regards the other properties. But, they enjoyed the suit items alone jointly and there was no division in regard to the suit items.
10. Since the 3rd Defendant, in whose name the patta stood as he was the elder in the family, was making attempts to sell the suit items in favour of the 4th Defendant and therefore, the Plaintiff has filed the suit for partition of 15/45th share i.e. 1/3rd in the suit items and for permanent injunction.
11. The suit was resisted by all the Defendants. The 1st Defendant filed a Written Statement, denying the share as claimed by the Plaintiff and contended that out of 360 shares, the Plaintiff is entitled to 94/360 and the 1st Defendant is entitled to 78/360. He accepted the genealogy put forward by the Plaintiff and also the Wills executed by Rajangam and Soundaram respectively bequeathing their share in favour of the sons and daughters of Poomayil. He would contend that the share fallen to Poomayil, his wife would devolve upon him and his children. Likewise, the share of Indra Devi after her death had fallen to him along with his children as father of Indra Devi. So according to him, he is entitled to 78/360th share and the Plaintiff is entitled to 94/360th share in the suit property.
12. The Written Statement filed by the 3rd Defendant was adopted by the 2nd Defendant. The 4th Defendant also field his Written Statement in conformity with the statement filed by the 3rd Defendant. They did not accept the genealogy put forth by the Plaintiff. According to them, one Thiruvupillai had two daughters, namely, Ramayee and Rakkayee. The suit is bad for non joinder of the heirs of Rakkayee. The total extent of 1st item of property is 1 acre and 56 cents and it was in joint enjoyment of Ramayee and Rakkayee and after their death, Kannathal, the grand daughter of Ramayee and Nachal and Rukku, heirs of Rakkayee orally divided the suit first item, in which the Western 78 cents was allotted to Kannathal, the 3rd Defendant herein and the Eestern 78 cents was allotted to Nachal and Rukku. On the death of Nachal and Rukku, their heir Ponnurangam was in enjoyment. The 3rd Defendant had sold the said 78 cents in favour of the 4th Defendant under Ex.B4 dated 14.8.2002.
13. As regards the 2nd item, out of total extent of 66 cents, belonging to one Nachathiram, Western 33 cents was orally purchased by Nachal and the Eastern 33 cents was purchased by the 3rd Defendant herein orally and they were issued patta for their respective share in UDR Scheme. The 3rd Defendant had sold her share i.e. Eastern 33 cents to the 4th Defendant. Further, as the properties were inherited from Women, Rajangam had no right of share. Neither Rajangam nor Soundaram had executed any Will bequeathing the properties to the sons and daughters of Poomayil. Therefore, the Plaintiff cannot claim any share in the suit property and the suit filed by the Plaintiff for partition is liable to be dismissed.
14. After analysing the evidence both oral and documentary, the Trial Court held that Ramayee is the owner of the suit property having purchased the first item under Ex.A2 dated 13.3.1935 and got the second item by inheritance from her mother Kuttal, in whose favour there was a mortgage by Arulandu and he failed to redeem the said mortgage. The Trial Court held that the Plaintiff is entitled to 94 out of 360 shares, the Defendants 2 and 3 each entitled to 94 shares and the 1st Defendant to 78 shares. The Trial Court held that though patta stood in the name of the 3rd Defendant, she cannot claim exclusive right in the suit property and the sale executed by the 3rd Defendant in favour of the 4th Defendant is not valid and not binding on the parties. Thus, the Trial Court granted a preliminary decree for partition of 94/360 share to the Plaintiff and also granted a decree for permanent injunction against the 4th Defendant.
15. Aggrieved against the share declared by the Trial Court, the Plaintiff filed the appeal in AS.No.8/2007 and the learned District Judge, Sivagangai affirmed the findings rendered by the Trial Court, but modified the Judgement and Decree by allotting 47/180th share to the Plaintiff and granted a decree for permanent injunction against the 4th Defendant, restraining him from interfering with the possession and enjoyment of the Plaintiff's share in the suit property.
16. Aggrieved over the same, the Plaintiff has preferred this second appeal. At this juncture, it is pertinent to mention that neither the Defendants 2 and 3 nor the 4th Defendant had filed any appeal challenging the concurrent findings rendered by the courts below regarding the ownership and right of Ramayee in the suit property.
17. At the time of admission, the following substantial question of law was framed:-
"Whether the Judgement and Decree of the courts below is perverse on account of its misinterpretation of the provisions of Section 15(2)(a) of the Hindu Succession Act?"
18. Pending the second appeal, the Appellant filed a petition in MP.No.1/2011 for receipt of the certified copy of the Judgement and Decree in AS.No.107/1997 on the file of the Sub Court, Sivagangai and the suit register in OS.No.81/1975 on the file of the District Munsif Court, Sivagangai as additional evidence.
19. According to him, previously the 1st Respondent as guardian of the Plaintiff, the 2nd and the 3rd Respondents filed a suit in OS.No.81/1975 before the District Munsif Court, Sivagangai claiming right in the property on the ground that the above said minors are the legal heirs of the deceased Indra Devi. He has not claimed any legal heirship with respect to the deceased Indra Devi in the said case, wherein the Will executed by Rajangam was in issue. The Appellant submitted that even as per the Will of Rajangam, the property on the death of Indra Devi devolved on the above said minors and not on the 1st Respondent. Hence, the Appellant's contention is that the 1st Respondent/Defendant who is the father of Indra Devi cannot be a legal heir to the deceased Indra Devi, who died issueless and he cannot claim any share in the suit property. It is contended that by his previous conduct, the 1st Respondent was estopped from contending that he is one of the legal heirs of Indra Devi in respect of the property covered by the Will executed by Rajangam. The Appellant would submit that when the suit was pending, he was not in possession of the copy of those additional documents and he had come to know of the earlier proceedings only recently and he had obtained the certified copy of those documents and seeks permission to file those documents as additional evidence.
20. The 1st Respondent resisted the said petition for reception of additional documents as additional evidence on the ground that the Appellant is not entitled to raise a new plea, which was not raised earlier and furthermore, those documents cannot be received, as there is absolutely no pleadings to that effect. It is further stated in the counter that the Appellant himself has admitted that except the suit items in this suit, all the other properties were partitioned between the Plaintiff and the Defendants and the suit items were jointly enjoyed by the Plaintiff and the Defendants. When that being so, the Appellant cannot change his stand and the petition seeking to receive additional evidence at this stage is not maintainable. That apart, the documents sought to be marked as additional evidence were relating to the property situated in Peruvelangudi Village, Siruvelangudi Village, Sanavayal Village, Navethiendal Village and do not relate to the suit property and hence, the additional documents are not relevant to the present suit.
21. The Appellant also sought permission to frame additional substantial question of law as below:-
"Whether the courts below are legally wrong in allotting the share of Rajangam to 1st Defendant without considering Section 8 and the Schedule of Hindu Succession Act, 1956?
22. This court heard the submissions made by the learned counsel on either side and also pursed the materials on record and the impugned judgements of the courts below.
23. The concurrent finding of the fact that the suit property belonged to Ramayee is not under challenge. Ramayee died in the year 1969. Through her first husband Muthukonar, one daughter namely Soundaram was born. Through her second husband, Alagupillai a daughter Poomayil and a son Rajangam were born. There is no dispute that Ramayee died intestate and her properties devolved upon Soundaram, Poomayil and Rajangam, each taking 1/3rd share in the suit properties.
24. The dispute is with regard to the property of Rajangam. In the plaint, it is specifically stated by the Plaintiff that Rajangam, who died unmarried, executed a Will dated 22.8.1973, bequeathing his share in the suit properties to his sister's children namely Tamilselvan, the Plaintiff, Boopalan, the 2nd Defendant, Indra Devi and Kannathal, the 3rd Defendant herein. But, in this second appeal, it is contended by the learned counsel for the Appellant that there is no reference to the suit property in the Will and though the properties in various Villages are mentioned, the suit Village is not mentioned and therefore, the Will has no bearing on the subject matter of the suit. So, it is contended that Indra Devi is not entitled to 1/12 share, as suit property is not dealt with in the Will and it would be deemed that Rajangam died intestate in respect of the suit property. According to the Appellant, since Rajangam died in 1974 unmarried and issueless, after introduction of Hindu Succession Act, 1956, his property devolves upon the enumerated heirs specified in Class II on the failure of any heir specified in Class I of the Schedule. It is his contention that since the father of Rajangam predeceased him, the only heir, who will be entitled to his share, is his step sister, namely, Soundaram, as his own sister Poomayil died even in the year 1973. He would further contend that even before Soundaram Indra Devi died and so in Soundaram's share, Indra Devi will not get right of Share. In that case, according to him, in determining as who are the heirs entitled to Soundaram's share, it is governed by Sections 15 and 16 of the Hindu Succession Act and therefore, the shares determined by the courts below cannot be sustained.
25. Mr.A.Arumugam, the learned counsel for the Appellant would submit that even though there is no plea to that effect, in a suit for partition, the position of the parties is not that of the Plaintiff and Defendants as in other suits and unless there is any special reason, the court cannot deny the right of any share to a co-owner, who actually is entitled to. The learned counsel would contend that even if a plea is not specifically made and yet if the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon such plea, if it is satisfactorily proved by evidence. In support of his contention, he placed reliance on the decision of the Honourable Supreme Court reported in AIR-1966- SC-735 (Bhagwati Prasad Vs. Chandramaul). The learned counsel pointed out to the law laid down in the said decision that though the relief sought for by the parties should be founded on pleadings made by the parties, but where the substantial matters relating to the title of the both parties to the suit are touched, though indirectly or even obscurely in the issues and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case.
26. On the other hand, Mr.S.P.Maharajan, the learned counsel for the Respondents contended that having pleaded one thing and having led evidence in support of such a plea, the Appellant/ Plaintiff is disentitled himself to claim relief as regards shares different from one claimed in the plaint. He would submit that the Plaintiff cannot be permitted to take up a case, which is wholly inconsistent with what he pleaded. The learned counsel pointed out that the new plea, which is sought to be raised and argued for the first time in the second appeal, were not made in the plaint and submitted that when these were not pleaded, the Defendant was denied the opportunity of denying or traversing them and therefore, the Plaintiff cannot be permitted to raise such a plea in this second appeal.
27. The learned counsel for the Respondents strenuously contended that an inference of fact to be drawn from the recitals or contents of a document is purely a question of fact and in the absence of any pleading and issue, there is no question of framing any substantial question of law on the arguments advanced by the Appellant. The learned counsel would submit that the High Court cannot give a finding on an issue, which was not raised nor evidence led in the Trial Court and by doing so, it would exceed its jurisdiction given under Section 100 of CPC. The learned counsel for the Respondents contended that the High Court cannot exceed its jurisdiction making a roving enquiry, entering into the factual arena of the case, which is not the one contemplated under the limited scope of jurisdiction of a second appeal under Section 100 of CPC.
28. The learned counsel for the Respondents placed reliance on a number of decisions in support of his aforesaid submissions, which are given below:-
1.2002-3-MLJ-114-SC (Ram Khilons and others Vs. Sardar and others) 2.2010-2-CTC-751 (B.Nemi Chand Jain and another Vs. G.Ravindran and others) 3.2006-2-MLJ-581 (Manickam Vs. Sakunthala alias Rajeswari and others) 4.2003-2-MLJ-207 (Selvaraju Vs. Govinda Padayachi (died) and others) 5.1998-2-MLJ-728 (United Bank of India, Mount Road Branch, Madras Vs. M/s.Central Scientific Supplies Company Limited and another)
29. At the outset, it is relevant to state that the Appellant, in paragraph 6 of the plaint, has specifically pleaded that Soundaram had executed a Will dated 22.8.1985 in favour of the children of his sister Poomayil in respect of her share in the suit properties. She died in 1997 and as one of the daughters of Poomayil, he is entitled to 5/45 share out of 15/45 share of Soundaram.
30. Likewise in paragraph 8 of the plaint, it is pleaded that Rajangam had bequeathed his right in the suit property to his sister's children under a Will dated 22.8.1973 and as such, the Plaintiff is entitled to 5/45 share. In fact, the Wills executed by Soundaram and Rajangam have been exhibited by him as Ex.A6 and Ex.A7. Since the Respondents 2 to 4/ Defendants 2 to 3 have denied the existence of Will, the Plaintiff have led evidence to prove those Wills by oral and documentary evidence. It is nowhere alleged that those Wills do not relate to the suit property. In fact, as rightly pointed by the first appellate court, the Plaintiff has stated that barring the suit properties, all other properties were divided among the parties and only the suit lands were enjoyed jointly by the Plaintiff and the Defendants. Throughout the proceedings, the contention of the Plaintiff was only to the effect that the property is derived from female heir and there was no pleadings about disentitlement of right of Rajangam to the suit property. Admittedly, no evidence was placed on record on that aspect.
31. It is not disputed that the above said plea never arose for consideration in the suit or in the appeal. The Plaintiff never raised such a plea and no such an issue was framed. Neither any evidence was recorded on this aspect of the matter nor were the courts below called upon to record a finding on that question. This position is not disputed by the learned counsel for the Appellant. Indisputably, the plea of the Appellant is at variance with the case set up by him before the courts below.
32. The provisions as to pleadings are intended to give to each side an intimation of the case of the other side, so that the case may be met and to enable the court to determine what is really at issue between the parties and to prevent deviation from the course which litigation on particular causes of action must. The aforesaid objects are well stated in AIR-1978-SC-484 (Trading Co. Vs. Moij Ram), wherein it is held that the object and purpose of pleading is to enable the adversary party to know the case it has to meet and in order to take a fair trial, it is imperative that the party should state essential material facts, so that the other party may not be taken by surprise.
33. A variation between pleading and proof would cause surprise and confusion and therefore, the variance in pleadings, that too, at a later stage, has to be looked upon with considerable disfavour. The evidence let in on the issues before the Trial Court, on which the parties actually went to trial, cannot be made the foundation for decision of altogether a different one, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. It is a settled preposition of law that the pleadings of the parties form the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case. Therefore, the Plaintiff cannot be permitted to raise a new plea wholly inconsistent with the one raised in the plaint.
34. At this juncture, it is relevant to refer to Rule 7 of Order VI of CPC, which says that no pleadings shall, except by way of amendment, raise any new ground or claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same. So, as per Order 6 Rule 7 of CPC, a new ground of claim or allegation of fact inconsistent with the previous pleadings of the party cannot be accepted, except by way of amendment. The statement made by the Plaintiff in the plaint is in the nature of admission and no plea inconsistent with it can be allowed to be raised at a later stage, except by way of amendment of pleading. Therefore, the Plaintiff cannot be allowed to raise a new ground of claim inconsistent with that statement made in the plaint.
35. The parameters, within which a new legal plea could be permitted to be raised, are specifically stated in sub section (5) of Section 100 of CPC. Under the proviso, the court should be satisfied that the case involves a "substantial question of law" and not mere a question of law. The reason for permitting the substantial question of law to be raised should be recorded by the court. It is implicit therefrom that on compliance of the above, the opposite party should be afforded a fair or proper opportunity to meet the same. It is not any legal plea that could be raised at the stage of second appeal. In the present case, a totally inconsistent plea sought to be raised by the Appellant cannot be entertained and allowing the Appellant to raise absolutely a new contention is beyond the pleadings of the parties. In view of the reasons stated above, there is absolutely no necessity to receive the additional documents sought to be filed as additional evidence.
36. Ramayee died in 1969 intestate. The property inherited by a female Hindu, namely, Ramayee devolved upon Soundaram, Poomayil and Rajangam, each taking 1/3rd share. Poomayil died in the early year of 1973. The property inherited by her is her mother's property. She had left two sons and two daughters and her husband, the 1st Defendant herein. As per Section 15(1)(a) of the Hindu Succession Act, the property shall devolve upon her sons, daughters and the husband. So, 1/3rd share of Poomayil will devolve upon the Plaintiff, the Defendants 2 and 3, Indra Devi who was alive at the time of death of her mother and the husband of Poomayil namely the 1st Defendant herein and each will get 1/15 share.
37. As regards the property of Rajangam and Soundaram, the property should devolve by testamentary succession in accordance with their respective Will. In so far as the 1/3rd share of Rajangam is concerned, he died in the year 1974 unmarried. He executed a Will bequeathing his property in favour of his sister's children, namely, Plaintiff, the Defendants 2 and 3 and Indra Devi and each gets 1/12th share.
38. Soundaram died in the year 1997. She had left a Will giving her share to her sister's children, namely, the Plaintiff, the Defendants 2 and 3 each getting 1/9th share in 1/3rd share of Soundaram. Section 15 of the Hindu Succession Act groups the heirs of a female, who dies intestate, into five categories described as entries (a) to (e) and specified in sub section (1). Two exceptions both of the same nature are engrafted by sub section (2) on the otherwise uniform order of succession prescribed by sub section (1). The two exceptions are that if the female dies without leaving any issue, then (i) in respect of property inherited by her from her father or mother, that property will devolve not according to the order laid down in the five entries (a) to
(e), but, upon the heirs of her father and (ii) in respect of property inherited by her from her husband or father-in-law, it will devolve not according to the order laid down in the five entries (a) to (e), but upon the heirs of the husband. Section 15 has to be read in conjunction with Section 16, which evolves a new and uniform order of succession to her property and regulates the manner of distribution.
39. In the present case, on the demise of Indra Devi, as she had inherited the property from her mother's side, it would devolve upon the heirs as prescribed under Section 15(2)(a). As the father is excluded as per Section 15(1), the 1st Defendant is not entitled to get any right in the share of Indra Devi. So, it would devolve upon the heirs of the father, namely, the Plaintiff and the Defendants 2 and 3.
40. Thus, the Plaintiff is entitled to 40/360 shares from Soundaram, 24/360 from Poomayil, 30/360 from Rajangam and 18/360 from Indra Devi, totally 112/360. Though the first appellate court rightly applied Section 15(2)(a) of the Act, but, however, did not exclude the father/the 1st Defendant in considering the devolution of share of Indra Devi. Therefore, the 1st Defendant is entitled to 24/360th share. The Defendants 2 and 3 are each entitled to 112/360th share.
41. In the result, this Second Appeal is allowed to the extent mentioned above. However, in the circumstances of the case, there will be no order as to costs. Consequently, the connected MPs are closed.
Srcm To:
1.The District Judge, Sivagangai
2.The District Munsif, Sivagangai
3.The Record Keeper, VR Section, Madurai Bench of Madras, High Court, Madurai