Madras High Court
Sellammal vs Dhanapal on 20 April, 2021
Author: M.Sundar
Bench: M.Sundar
S.A.Nos.387 & 389 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 20.04.2021
Coram
THE HONOURABLE MR. JUSTICE M.SUNDAR
S.A.Nos.387 & 389 of 2021
Sellammal
W/o. Periasamy .. Appellant in both SA
Vs.
1. Dhanapal
S/o.Chinnusamy
2. Chinnammal
W/o. Periasamy .. Respondents in both SA
Second Appeal No.387 of 2021 under Section 100 of CPC to set aside
the judgement and decree dated 19.10.2019 made in A.S.No.80 of 2018 on
the file of the Principal District Judge at Nammakkal confirming the
judgment and decree dated 10.10.2018 made in O.S.No.146 of 2012 on the
file of the Additional Subordinate Judge's Court at Namakkal (previously
O.S.No.64 of 2012, Principal District Munsif Court at Nammal).
Second Appeal No.389 of 2021 under Section 100 of CPC to set aside
the judgement and decree dated 19.10.2019 made in A.S.No.81 of 2018 on
the file of the Principal District Judge at Nammakkal confirming the
judgment and decree dated 10.10.2018 made in O.S.No.22 of 2012 on the
file of the Additional Subordinate Judge's Court at Namakkal.
1/18
https://www.mhc.tn.gov.in/judis/
S.A.Nos.387 & 389 of 2021
For Appellant in both SA : Mr.T.L.Thirumalaisamy
----
COMMON JUDGMENT
This common judgment will govern the captioned two Second Appeals. In this judgment, for the sake of convenience and clarity S.A.No.387 of 2021 shall be referred to as Senior Second Appeal and S.A.No.389 of 2021 shall be referred to as Junior Second Appeal based on the sequence in which numbers have been assigned to the captioned Second Appeals.
2. Facts necessary for appreciating this judgment are that two sisters namely, Chinnammal and Sellammal both daughters of Ramasamy Gounder (S/o.Rangasamy Gounder) presented a plaint almost a decade ago, to be precise, on 02.02.2012 on the file of Additional Subordinate Judge's Court at Namakkal which was assigned the number as O.S.No.22 of 2012; that in this suit, the two sisters arrayed their father Ramasamy Gounder as first defendant and purchaser of the suit property (Dhanapal) as second defendant; that prayer in the suit was for partition and separate possession; that the 2/18 https://www.mhc.tn.gov.in/judis/ S.A.Nos.387 & 389 of 2021 father Ramasamy and purchaser Dhanapal had jointly presented another plaint on 13.02.2012 which was originally taken on file as O.S.No.64 of 2012 on the file of the Principal District Munsif's Court at Namakkal and thereafter, assigned the number as O.S.No.146 of 2012 on the file of the Additional Subordinate Judge's Court at Namakkal; to be noted, this Additional Subordinate Judge's Court at Namakkal shall be referred to as 'trial Court' in this judgment; that the suit in O.S.No.146 of 2012 presented by father and alienee was for bare injunction and his two daughters Chinnammal and Sellammal were arrayed as defendants 1 & 2 respectively in this suit; that there was joint trial in both suits; that in and by a common judgment and decree dated 10.10.2018 the trial Court dismissed the daughters' partition suit and decreed father's bare injunction suit; to be noted, one of the plaintiffs namely, Chinnammal (first plaintiff before trial Court) was transposed as third defendant; that lone plaintiff Sellammal carried the matter by way of two appeals i.e., two regular First Appeals under Section 96 of 'The Code of Civil Procedure, 1908' ['CPC' for brevity] to the Principal District Judge's Court, Namakkal; to be noted, though it is a common judgment in a joint trial there were two decrees and therefore there were two 3/18 https://www.mhc.tn.gov.in/judis/ S.A.Nos.387 & 389 of 2021 appeals, appeal against dismissal of the daughters' partition suit is A.S.No.81 of 2018 and appeal against decreeing of father's bare injunction suit is A.S.No.80 of 2018; that both appeals were on the file of the Principal District Judge's Court, Namakkal, which shall hereinafter be referred to as 'First Appellate Court'; that after full contest, the First Appellate Court dismissed both appeals confirming the common judgment and decrees of the trial Court in daughters' partition suit and father's bare injunction suit; this was vide a common judgment and decrees dated 19.10.2019; that second plaintiff who had subsequently become lone plaintiff in the trial Court and lone appellant in the First Appellate Court is now appellant in the captioned Second Appeals; that the judgments and decrees of the trial Court and the First Appellate Court turn heavily/pivoted on the question as to whether the suit properties are ancestral properties.
3. Mr.T.L.Thirumalaisamy, learned counsel for appellant in both Second Appeals who is before me in this Virtual Court, notwithstanding very many grounds in the memoranda of grounds of appeals, notwithstanding many questions proposed as substantial questions of law in memoranda of 4/18 https://www.mhc.tn.gov.in/judis/ S.A.Nos.387 & 389 of 2021 grounds of appeals projected his case primarily on the point that the question of whether the suit properties are ancestral properties i.e., joint family properties and whether the other properties were purchased from and out of income generated from this nucleus should not have been decided by shifting the burden of proof on the plaintiff. Learned counsel submits that the trial Court erred in shifting the burden of proof on the plaintiff. This Court is of the view that burden cannot shift and at best, if at all and if that be so what can shift is onus as it can swing like a pendulum from one end of the lis to the other. A careful perusal of the judgment of the trial Court reveals that the trial Court has framed two issues and one additional issue (captured in paragraph Nos.7 & 8 of the judgement of the trial Court) which read as follows:
'7.nkny brhd;d tHf;Fiu kw;Wk; vjph;tHf;Fiuapd; mog;gilapy; fPH;f;zl vGtpdhf;fs; njjpapy; tidag;gl;Ls;sd:-
m/t/vz;/146-2012:-
1) tpsk;g[if ghpfhuk; nfhuhky; jhf;fy; bra;j tHf;F epiyf;fj;jf;fjy;y vd;gJ rhpah>
2) ntW ghpfhuk; vd;d> tHf;Fiu kw;Wk; vjph;tHf;Fiuia ghprPyf;Fk;nghJ ,t;tHf;F epue;ju cWj;Jf;fl;lis ghpfhuk; nfhhp jhf;fy;5/18
https://www.mhc.tn.gov.in/judis/ S.A.Nos.387 & 389 of 2021 bra;ag;gl;Ls;sJ/ Mdhy; mJ bghWj;J vGtpdh vJt[k; tidag;glhjjhy; fl;lis 14 tpjp 5d; fPH; fPH;f;f;zl TLjy; vGtpdh tidag;gLfpwJ/ 8/ TLjy; vGtpdh:-
1) jhth brhj;jpy; epue;ju cWj;Jf; fl;lis ghpfhuk;
thjpf;F fpilf;fj;jf;fjh>'
4. Learned counsel, adverting to sub-paragraph No.(iv) of Paragraph No.11 of the judgment of the trial Court submitted that the defendants have admitted that the suit properties were ancestral joint family properties. Therefore, this Court deems it appropriate to extract and reproduce Paragraph No.11(iv) of the judgment of the trial Court which reads as follows:
'11(iv). g{h;tpf brhj;Jf;fspy; xU gFjpia khug;g ft[z;lh; kfd; br';nfhl ft[z;lh; vd;gtUf;F tpw;gid bra;jjw;F Mjuthf 29/04/1980k; njjpapl;l fpiua Mtzj;jpd; rhh;gjpthsh; mYtyf rhd;wl;l efy; th/rh/M/4Mf FwpaPL bra;ag;gl;Ls;sJ/ th/rh/M/3 Mtzj;ijg; ghprPypf;Fk;nghJ mt;thtzk; fle;j 02/09/1974k; njjp Vw;gLj;jg;gl;Ls;sJ/ 1k; gpujpthjp uhkrhkpa[k;. mtuJ rnfhjuh; khug;g ft[z;lh; kw;Wk; mth;fsJ kw;bwhU rnfhjuuhd fhy";brd;w bgUkhs; ft[z;lhpd; Ie;J taJs;s 6/18 https://www.mhc.tn.gov.in/judis/ S.A.Nos.387 & 389 of 2021 kfd; bry;yg;gd; kw;Wk; bry;y;ggdpd; jhahh; ey;yk;khs; Mfpa ehy;tUk; nrh;e;J Vw;gLj;jpf; bfhz;l ghfg;gphptpid MtzkhFk;/ mth;fs; ehy;tUk; murej;jk; fpuhkj;jpy; cs;s gpJuh$;$pakhf ghj;jpag;gl;l brhj;Jf;fis ghfk; gphpjJ ; Mtzk;
Vw;gLj;jpf; bfhz;Ls;shh;f;s/ me;j ghff; fwhh; Mtzj;jpy; fz;Ls;s V brl;a{y; brhj;Jf;fs; 1k; gpujpthjp uhkrhkpf;Fk;. mtuJ rnfhjuh; khug;gDf;Fk; ghfkhf gphpf;fg;gl;lJ/ gp brl;a{y; brhj;Jf;fs; bry;yg;gDf;Fk; mtuJ jhahUf;Fk; ghfkhf xJf;fg;gl;lJ/'
5. In the considered view of this Court, the trial Court has dealt with the matter by setting out the applicable legal principles which arise in the fact setting of the case with specificity and clarity. This has been captured in part of sub-paragraph No.(ix) of Paragraph No.11 of trial Court judgment and relevant portions of this sub-paragraph read as follows:
'11(ix).................. ,e;J thhpRhpikr; rl;lk; (rl;lj; jpUj;jk; 2005) gphpt[ 6d;go ".........(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a joint Hindu governed by the Mitakshara law, the daughter of a comparcener shall,-
(a) by birth become a coparcener in her own right in the same manner as the son;7/18
https://www.mhc.tn.gov.in/judis/ S.A.Nos.387 & 389 of 2021
(b) have the same rights in the comparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener.
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004 ......... "
nkw;go rl;l tpjpay; fz;Ls;s ruj;Jf;fs;go jhth brhj;Jf;fis thjp ghfk; bgwntz;Lbkdpy; jhth brhj;Jf;fs; g{h;tPf brhj;jhf ,Uf;f ntz;Lk;/ mr;brhj;J 20?12?2004k; njjpf;F Kd;ng tpy;y';fg; guhjPdk; Vw;gLj;jhky; g{h;tPf brhj;jhf mDgtpj;J ,Ue;J tu ntz;Lk;/ nkw;go rl;lg; gphpt[ eilKiwf;F te;j njjpapy; ghfk; nfl;Fk; bgz;zpd; thjpapd; jfg;gdhh; capUld; ,Uf;f ntz;Lk;/ ,k;K:d;W fhuz';fSk; ,t;tHf;F r';fjpfSf;Fg; bghUe;Jnkahdhy; thjpf;F ghfk; fpilf;fj;jf;fjhFk;/ ,t;tHf;fpy; fle;j 2012k; Mz;L jhf;fy; bra;ag;gl;Ls;sJ/ mjpy; thjpapd; jfg;gdhh; 1k; gpujpthjpahf cs;shh;/ nkYk; 1k; gpujpthjp fle;j 02?01?2012k; njjpay; 2k; gpujpthjp bgaUf;F jhth brhj;ij fpiuak; Vw;gLj;jpf; bfhLj;Js;shh;/ vdnt. 2005k; Mz;L rl;lj; jpUj;jk; eilKiwf;F te;jnghJ thjpapd; jfg;gdhh; capUld;8/18
https://www.mhc.tn.gov.in/judis/ S.A.Nos.387 & 389 of 2021 ,Ug;gjhYk; mnj nghy; rl;lj;jpUj;jj;jpw;F gpwF 2012k; Mz;Ljhd; 1k; gpujpthjp. 2k; gpujpthjpf;F fpiuak; vGjpf; bfhLj;jpUg;gjhYk; nkw;go K:d;W fhuz';fspy; ,uz;L fhuz';fs; ,t;tHf;fpw;F thjpf;F Mjuthf bghUe;jf; Toajhf cs;sJ/ jw;;nghJ jhth brhj;J g{h;tPf brhj;jh vd;gij kl;Lnk jPh;khdk; bra;a ntz;Lk;/' (Underlining made by this Court is for the ease of reference)
6. When the matter was carried in appeals by way of regular First Appeals, the First Appellate Court in its common judgment set out four points for consideration and captured the same in Paragraph No.15 which read as follows:
'15. The Point for consideration is:-
(1) Whether the suit properties are the ancestral property (or) separate property of Ramasamy?
(2) Whether the Plaintiff Sellammal is entitled for the partition of 1/3 share over the suit property, even she got marriage prior to 1989?
(3) Whether the 2nd defendants is the bonafide purchaser of the suit property and whether he is in possession of the suit property?
(4) Whether the appeals can be allowed?' 9/18 https://www.mhc.tn.gov.in/judis/ S.A.Nos.387 & 389 of 2021
7. To be noted, point No.1 set out in the points for determination by the First Appellate Court is now the sheet anchor submission qua campaign of protagonist in captioned Second Appeals and this point No.1 has been answered by the First Appellate Court in its judgment in Paragraph Nos.18 to
29. This Court has carefully perused this paragraph Nos.18 to 29, without burdening this judgment with all the 12 paragraphs, this Court deems it appropriate to extract and reproduce Paragraph No.29 which reads as follows:
'29. The 1st defendant Ramasamy and his brother Marappa Gounder have sold some items and purchased some items after execution of Ex.A3 Partition Deed. Further, the 1st defendant being the father of plaintiff Sellammal got sale deed in his favour vide Ex.A6 and Ex.A7 Sale deeds. In fine, the 1st defendant had sold his properties to the 2nd defendant Dhanabal vide Ex.B3 Sale deed dated 2.1.2012, wherein the 1st defendant has categorically stated that as per the Ex.A3 partition deed and subsequent documents and as per the oral arrangements between him and his brother Marappa Gounder he is selling the suit property to 2nd defendant. Thus, I hold that as per Ex.A3 partition deed dated 2-9-1974 itself, the status of HUF of the plaintiff ceased to its effect and I hold that the suit properties are the separate properties of the 1st defendant Ramasamy Gounder. Accordingly, I answered to the point No.1.' 10/18 https://www.mhc.tn.gov.in/judis/ S.A.Nos.387 & 389 of 2021
8. This Court finds that the legal principles have been correctly applied and factual findings returned by the trial Court and the First Appellate Court are to the effect that the suit properties are separate properties of first defendant Ramasamy Gounder (father) and to put it negatively, the factual findings returned by both Courts below are that the suit properties are not ancestral properties. In the light of articulation of the trial Court and the First Appellate Court, relevant portions of which have been extracted and reproduced supra, this Court is unable to persuade itself to believe that there is any error, much less a error in judgments of Courts below leading to substantial question/s of law arising in captioned second appeals.
9. This Court reminds itself of Kanailal principle laid down by Hon'ble Supreme Court in Kanailal and Others Vs. Ram Chandra Singh and Others reported in (2018) 13 SCC 715 and this Court deems it appropriate to read the same in conjunction with Kirpa Ram principle laid down by Hon'ble Supreme Court in Kirpa Ram Vs. Surendra Deo Gaur and others reported in 2020 SCC Online SC 935. To be noted, Kanailal 11/18 https://www.mhc.tn.gov.in/judis/ S.A.Nos.387 & 389 of 2021 principle is to the effect that principles underlying Order XLI Rule 31 CPC stand telescoped into a Section 100 CPC legal drill and Kirpa Ram principle is to the effect that a Second Appeal Court can dismiss a second appeal at the admission stage itself without formulating a substantial question of law if no substantial question of law arises. Owing to conjoint reading of Kanailal and Kirpa Ram principles, this Court deems it appropriate to set out two points for consideration in the captioned Second Appeals and the same are as follows:
(a) Whether there is any error in the approach of the Courts below in deciding the question as to whether the suit properties are ancestral properties or separate properties of plaintiff's father Ramasamy Gounder against whom she has been fighting this litigation for nearly a decade now?
(b) Whether any substantial question of law arises in the captioned Second Appeals?.
10. Before embarking upon the exercise of setting out my decision qua the aforementioned points for determination and reasons for the decision, I 12/18 https://www.mhc.tn.gov.in/judis/ S.A.Nos.387 & 389 of 2021 deem it appropriate to remind myself about what the expression 'substantial question of law' occurring in Section 100 CPC means. This expression 'substantial question of law' occurring in Section 100 CPC has not been defined in CPC, but one of the first of judgements which explained this expression 'substantial question of law' occurring in Section 100 of CPC was rendered by a Hon'ble Full Bench of Madras High Court in the celebrated Rimmalapudi Subba Rao's case [Rimmalapudi Subba Rao Vs. Noony Veeraju And Others reported in AIR 1951 Madras 969 (FB)]. Thereafter, a Constitution Bench of Hon'ble Supreme Court in the celebrated Chunilal Mehta's case [Sir Chunilal V.Mehta and Sons Ltd., Vs. Century Spinning and Manufacturing Co. Ltd., reported in AIR 1962 SC 1314], which is also known as Century Spinning Mills case, affirmed the view taken by Hon'ble Full Bench of Madras High Court. This was neatly and nicely captured by Hon'ble Supreme Court in Santosh Hazari case [Santosh Hazari Vs. Purushottam Tiwari (deceased) by Lrs., reported in (2001) 3 SCC 179]. This Court without burdening this judgment qua such elucidation considers it appropriate to extract and reproduce paragraph No.12 of Santosh Hazari case, which reads as follows:
13/18
https://www.mhc.tn.gov.in/judis/ S.A.Nos.387 & 389 of 2021 '12. The phrase “substantial question of law”, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying “question of law”, means — of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with — technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta [AIR 1928 PC 172 : 55 IA 235] , the phrase “substantial question of law” as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mfg. Co. Ltd. [AIR 1962 SC 1314 : 1962 Supp (3) SCR 549] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [ILR 1952 Mad 264 : AIR 1951 Mad 969] :14/18
https://www.mhc.tn.gov.in/judis/ S.A.Nos.387 & 389 of 2021 “[W]hen a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.” and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial: “The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.”' 15/18 https://www.mhc.tn.gov.in/judis/ S.A.Nos.387 & 389 of 2021
11. This Court has already extracted and reproduced the most pithy and relevant paragraphs of the trial Court and the First Appellate Court judgments regarding factual findings pertaining to whether the suit properties are ancestral properties or separate properties of plaintiff's father Ramasamy Gounder. These paragraphs makes it clear that the trial Court/First Appellate Court has rightly applied the obtaining law and have set out the factual findings succinctly. There is nothing demonstrable warranting interference qua these concurrent factual findings much less in a Section 100 CPC legal drill. Answer to second point for determination follows as a sequitur to this in the light of elucidation of what substantial question of law is which has been set out supra by extracting and reproducing relevant paragraph in Santosh Hazari's case. Nothing debatable, nothing res integra, no disregard to settled principles have been demonstrated and therefore, this Court has no difficulty in coming to the conclusion that no substantial question of law/s arise/s in captioned Second Appeals. As both points for determination are answered against the protagonist of captioned Second Appeals, as an inevitable sequitur captioned Second Appeals stand dismissed at the 16/18 https://www.mhc.tn.gov.in/judis/ S.A.Nos.387 & 389 of 2021 admission stage holding that no substantial question/s of law arise/s. Owing to the relationship between the parties and owing to the nature of the matter and nature of the submissions made before this Court, there shall be no order as to costs.
20.04.2021 Speaking/Non-speaking order Index : Yes / No Internet : Yes / No mk To
1. The Additional Subordinate Judge, The Additional Subordinate Court Namakkal.
2. The Principal District Judge The Principal District Court Namakkal.
17/18 https://www.mhc.tn.gov.in/judis/ S.A.Nos.387 & 389 of 2021 M.SUNDAR. J mk S.A.Nos.387 & 389 of 2021 20.04.2021 18/18 https://www.mhc.tn.gov.in/judis/