Madras High Court
Nirmalraj vs State Of Tamil Nadu Rep.By Its on 12 July, 2019
Author: P.T. Asha
Bench: P.T. Asha
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.07.2019
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.63 of 2013
and
M.P.No.1 of 2013
Nirmalraj ...Plaintiff/Appellant/Appellant
Vs.
1.State of Tamil Nadu rep.by its
District Collector,
Namakkal.
2.The Revenue Divisional Officer,
Revenue Divisional Office,
Namakkal.
3.The Tahsildar,
Taluk Office,
Rasipuram.
4.Sarasu
5.Selvam
6.Selvi ...Defendants/Respondents/
Respondents
http://www.judis.nic.in
2
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated
01.08.2012 made in A.S.No.4 of 2012 on the file of the learned
Subordinate Judge, Rasipuram, confirming the Judgment and
Decree dated 11.10.2011 made in O.S.No.23 of 2010 on the file
of the learned District Munsif, Rasipuram.
For Appellant : Mr.T. Dhanyakumar
For Respondents : Mr.S. Jaganathan,
Government Advocate
for R1 to R3
Mr.T.R. Rajaraman
for R4 and R5
No appearance for R6
JUDGMENT
The above Second Appeal arises against the concurrent Judgment and Decree in the suit which emanates from the proceedings in O.S.No.23 of 2010 on the file of the learned District Munsif, Rasipuram, which is the suit filed by the plaintiff for declaring that he and the defendants 4 to 6 are the legal representatives of the deceased Karuppanna Gounder. http://www.judis.nic.in 3
2.The sum and substance of the suit is that the deceased Karuppanna Gounder had two sons and a daughter. One of the sons had predeceased the father as a bachelor. The elder son Raji, the husband of the 4th defendant and the father of the 5th defendant is no more. The daughter of the deceased Karuppanna Gounder, Palaniammal @ Jayammal had two daughters, one Visalachi and the 6th defendant Selvi. The plaintiff is the son of Visalachi. Palaniammal @ Jayammal had passed away on 22.09.1982 and Visalachi had also passed away on 14.10.1991. Only thereafter the said Karuppanna Gounder died. The plaintiff has filed the above suit stating that he is also a legal heir through his mother Visalachi and it is only the plaintiff and the defendants 4 to 6, who are the legal representatives of the deceased Karuppanna Gounder.
3.The said suit was resisted by the defendants 4 and 5 and the 6th defendant remained ex parte. The defendants 4 and 5 had filed a Written Statement inter alia contending that Karuppanna Gounder died on 31.01.2004 and thereafter, his son http://www.judis.nic.in 4 Raji died on 26.07.2008. It is the further case that when Karuppanna Gounder died on 31.01.2004, his wife Chinnammal and Raji were alive. The daughter of Karuppanna Gounder, namely, Palaniammal @ Jayammal had passed away on 22.09.1982. His wife, the said Chinnammal also passed away on 16.05.2005. Visalachi through whom the plaintiff claims to be the legal representative of the deceased Karuppanna Gounder, had got married in the year 1956. The other daughter of Jayammal, namely, Selvi, is the 6th defendant herein. She as the only daughter, had released the shares in favour of Raji, son of Karuppanna Gounder and therefore, Raji has become the absolute owner of the suit properties. On his death, his wife and daughter, namely, defendants 4 and 5 have become entitled to the said properties. They had further contended that the plaintiff is not the Class I legal heir of the deceased Karuppanna Gounder and it is only in the absence of the Class I heirs that the others would be entitled to the property. Both the Courts below have concurrently held that the plaintiff is not entitled to the relief claimed by him.
http://www.judis.nic.in 5
4.The trial Court in the Judgment has observed as follows:
“... fUg;gz;z ft[z;lh; ,we;J nghd 31.01.2004 njjpad;W epytp te;Js;s mjhtJ mkypy; ,Ue;Js;s ,e;J thhpRhpik rl;lg;gphptpy; 8d; go xU ,e;J Mz; capy; vJt[k; vGjp itf;fhj epiyapy; ,we;Jtpl;lhy;/ mtUila brhj;J brd;wila ntz;oa Kjy;epiy thhpRfs; 2k; epiy thhpRfs; kw;Wk; 3k; epiy thhpRfs; gw;wp ,e;j rl;lj;Jld; ,izf;fg;gl;Ls;s gl;oaypy; Fwpg;gpl;Ls;s tpgu';fspd; go kfd;/ kfs;/ tpjit/ mk;kh/ ,we;Jnghd kfdpd; kfd;/ Kd;dnu ,we;Jnghd kfdpd; kfs;/ Kd;dnu ,we;Jnghd kfspd;; kfs;/ Kd;dnu ,we;Jnghd kfspd;; kfd;/ Kd;dnu ,we;Jnghd kfspd; tpjit/ Kd;dnu ,we;Jnghd kfDf;Fk;/ Kd;dnu ,we;Jnghd kfdpd; kfd;/ Kd;dnu ,we;Jnghd kfdpd; Kd;dnu ,we;Jnghd kfdpd; tpjit Mfpnahh; kl;Lnk Kjy;epiy thhpRfshf Fwpg;gplg;gl;Ls;shh;fs;. ,e;j tHf;fpd; thjpahd eph;ky;uh$; ,e;j cwt[ Kiwapy; vjpYk; tutpy;iy.”
5.Challenging the said Judgment and Decree, the plaintiff http://www.judis.nic.in 6 had filed an appeal in A.S.No.4 of 2012 on the file of the learned Subordinate Judge, Rasipuram. The learned Subordinate Judge, Rasipuram, had also concurred with the findings of the learned District Munsif, Rasipuram. It is challenging this concurrent Judgment and Decree, the plaintiff is before this Court.
6.The above Second Appeal was admitted on 12.02.2019 on the following Substantial Questions of Law:
“1.Whether the plaintiff is entitled to declaration that he is legal heir of Karuppanna Gounder along with defendants 4 to 6?
2.Whether the plaintiff is entitled to the benefit of Hindu Succession (Amendment) Act, 2005?”
7.The learned counsel for the plaintiff would submit that considering the fact that his mother Visalachi is one of the daughters of Palaniammal, the daughter of Karuppanna Gounder, he would as a matter of right be entitled to be declared the legal heir of Karupanna Gounder through his mother Visalachi and therefore, the Courts below erred in rejecting his claim. http://www.judis.nic.in 7
8.As rightly pointed out by the counsel for the respondents and observed by the Courts below, under Section 8 of the Hindu Succession (Amendment) Act read with Schedule I, it is only in the absence of Class I legal heirs that Class II heirs become entitled to and in their absence, the class III heirs to claim a share in the property of the deceased. Admittedly, the Class I legal heirs are alive and the class I heir of Palaniammal @ Jayammal, namely, Selvi has released her right to the property in favour of her uncle Raji, who is the husband of the 4 th defendant and the father of the 5th defendant.
9.In view of the above, there is no merit in the case of the appellant. The Substantial Questions of Laws are answered against the appellant.
This Second Appeal is dismissed. The Judgment and Decree of the Courts below are confirmed. Consequently, connected Miscellaneous Petition is closed. No costs.
12.07.2019
Index : Yes / No
Internet : Yes / No
http://www.judis.nic.in
8
mps
To
1.The Subordinate Judge,
Rasipuram.
2.The District Munsif,
Rasipuram.
3.The District Collector,
State of Tamil Nadu,
Namakkal.
4.The Revenue Divisional Officer,
Revenue Divisional Office,
Namakkal.
5.The Tahsildar,
Taluk Office,
Rasipuram.
http://www.judis.nic.in
9
P.T. ASHA, J,
mps
S.A.No.63 of 2013
and
M.P.No.1 of 2013
12.07.2019
http://www.judis.nic.in