Madras High Court
Krishnan vs Thanjiyappan on 26 July, 2022
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 23.06.2022
Pronounced on : 26.07.2022
CORAM :
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
S.A.No. 17 of 2008
Krishnan ... Plaintiff/appellant/appellant
Vs.
1. Thanjiyappan
2. Narayanan ... Defendants/Respondents/Respondents
PRAYER: This Second Appeal is filed under Section 100 of Civil
Procedure Code, against the Judgment and Decree in A.S.No. 47 of 2006
on the file of Additional Sub-Court, Tiruvanamalai and dated 09.01.2007
in confirming the Judgment and Decree in O.S.No. 13 of 1998 on the file
of the District Munsif Court, Chengam and dated 07.10.2005.
***
For Appellant : Mr. V.Srimathi
For 1st Respondent : No appearance
For 2nd Respondent : Mr. S.Govi Ganesan
https://www.mhc.tn.gov.in/judis
2
JUDGMENT
The plaintiff in O.S.No. 13 of 1998 on the file of the Additional District Munsif Court at Chengam is the appellant herein.
2. The said suit had been filed by the plaintiff Krishnan against his two elder brothers Thanjiyappan and Narayanan, seeking declaration of his undivided 1/3rd share in the first item of suit property and for consequential permanent injunction against the second defendant, and for partition and separate possession of ½ share in the second item of the suit property.
3. The first item of suit property punja lands in S.No. 66/6 in Melpallipatt Village, Chengam in Tiruvanamalai District. The second item of suit property is house in Door No.15, Vaniyamkulam Street, Uthukottai, Tiruvanamalai District.
4. The Additional District Munsif, Chengam, had dismissed the suit.
5. Thereafter, the appellant herein had filed A.S.No. 47 of 2006 and also I.A.No. 185 of 2006 to receive additional documents before the https://www.mhc.tn.gov.in/judis 3 Additional Sub Court at Tiruannamalai. By Judgment dated 09.01.2007, though I.A.No. 185 of 2006 was ordered, it was held that the additional documents would not advance the cause of the appellant. A.S.No. 47 of 2006 was dismissed. This has necessitated the plaintiff to file the present Second Appeal.
6. The second appeal had not been admitted. However, a perusal of the notes paper reveal that a learned Single Judge had dismissed the second appeal against the first respondent, Thanjiyappan, who was the first defendant in the suit on 05.07.2021.
7. The suit in O.S.No. 13 of 1998 had been filed by the appellant herein seeking a declaration of his undivided 1/3rd share in the first item of the suit property and for partition and separate possession of ½ share in the second item of suit property. The plaintiff claimed that the suit properties originally belonged to Venkatachala Naicker, who had executed a settlement deed with respect to 4 acres and 4 Wells in favour of his two daughters Nagarathinammal and Kuppammal. The plaintiff and the two defendants are the sons of Kuppammal. It was also claimed that https://www.mhc.tn.gov.in/judis 4 Venkatachala Naicker also sold a portion of the lands and out of the sale proceeds purchased the first item of the suit property in the name of his wife Kamalammal. Kamalammal had executed a settlement deed with respect to 2.10 acres with ½ share in the Well in favour of her minor grandsons, the 1st and 2nd defendants and Ambikapathy, her grandson through another daughter Nagarathinammal. The first and second defendants were given the western extent of 1.05 acres. This settlement deed dated 24.02.1954 was also registered.
8. Claiming that the first item of suit property was an ancestral property and that Kamalammal had no right or title to execute the settlement deeds, the suit had been filed seeking a declaration of 1/3rd share in the first item of suit property. With respect to the second item of suit property, the plaintiff claimed that it was in Government Poromboke land and his father Munisamy had occupied it and on 10.06.1988 a panchayat was convened and the plaintiff and the second defendant were each allotted ½ share in the said property. Therefore, the suit was also filed for partition and separate possession of the said ½ share in the second item of suit property.
https://www.mhc.tn.gov.in/judis 5
9. The second defendant had filed a written statement disputing the contentions of the plaintiff. He stated that the settlement deed executed by Kamalammal on 24.02.1954 was a valid settlement deed settling her self acquired properties. It was stated that she had purchased the properties out of her own available funds and had every right to settle the said properties. It was also specifically stated that on the date of the settlement deed, the plaintiff was not even born and therefore, cannot claim any right over the said first item of suit property. With respect to the second item of suit property, it was contended that the alleged agreement dated 10.06.1988 is a forged document and that the second defendant had not signed the said agreement and no panchayat was convened. It was stated that the second item of suit property was the self acquired property of Indirani Ammal, the wife of the second defendant and therefore, the plaintiff cannot claim any right over the property.
10. The trial Court framed the following issues for trial:-
“1. Whether the 1st item of the suit https://www.mhc.tn.gov.in/judis 6 property is the self acquired property of Kamalammal?
2. Whether the agreement executed on 10.06.88 is true, valid and binding upon the defendants?
3. Whether the second item of the suit property is separate and self acquired property of Indirani Ammal?
4. Whether the second defendant perfected the title to the second item of the property by adverse possession?
5. Whether the suit is bad for non-
joinder of necessary parties?
6. Whether the plaintiff is entitled for suit claim?
7. To what other reliefs is the Plaintiff entitled to?”
11. During trial, four witnesses were examined on behalf of the https://www.mhc.tn.gov.in/judis 7 plaintiff who also marked Exs. A-1 to A-21. The defendants examined five witnesses and marked Exs. B-1 to B-23. The settlement deed dated 24.02.1954 was marked as Ex.B-1. Ex.B-2 was a sale deed in favour of Kamalammal dated 12.05.1944. The patta in the name of the second defendant was marked as Ex.B-2. These are the material documents.
12. On consideration of the evidence, the trial Court found as a fact that it was given in the recital that Kamalammal had purchased the property out of her own funds. It was also held that therefore, she had every right to settle the properties in favour of the first and second defendants. The alleged Panchayat in the year 1988 had not been proved in manner known to law. In view of the said facts, the suit was dismissed.
13. The First Appellate Court in A.S.No. 47 of 2006 by Judgment dated 09.01.2007 affirmed the said finding.
14. The plaintiff then filed the present second appeal. The Second Appeal has been pending from 2008. It had not been admitted. https://www.mhc.tn.gov.in/judis 8
15. Heard the learned counsels.
16. The facts are simple and straightforward. The appellant herein had filed a suit seeking declaration of 1/3rd share in the first item of suit property and partition and separate possession of ½ share in the second item of suit property.
17. The first item of suit property is punja lands in S.No. 66/6 in Melpallipatt Village, Chengam in Tiruvanamalai District. The second item of suit property is house in Door No.15, Vaniyamkulam Street, Uthukottai, Tiruvanamalai District.
18. The first item of suit property was purchased by Kamalammal by Ex.B-22 dated 12.05.1944. The burden was entirely on the plaintiff to establish that the said purchase was out of the joint family nucleus. However, the document speaks for itself. It had been stated in the recitals that Kamalammal had purchased the property from her own funds. She had become the absolute owner in her name with absolute right and title to transfer it in any manner she desired. She executed a settlement deed in https://www.mhc.tn.gov.in/judis 9 favour of her minor grandchildren. The plaintiff was not in born at that time. He was not even a child in the womb.
19. When the second appeal was filed, he described himself as being 39 years of age which would indicate he should have been born in the year 1969 or probably in the year 1970. The settlement deed was executed in the year 1954. It is inconceivable as to how he can ever claim a share of a property which had been settled nearly 15 years prior to his birth.
20. Both the Courts below have come to a definite conclusion that the settlement deed had been lawfully executed by Kamalammal. The conclusion was reached on the fact that she had the necessary resources to purchase the property and had been so stated in the recital. The said concurrent findings on fact cannot be re-examined at this appellate state. No additional document had been produced to hold otherwise.
21. No point in law had been argued by the learned counsel for the appellant except to reiterate the facts as stated in the plaint. That cannot https://www.mhc.tn.gov.in/judis 10 advance the cause of the appellant herein.
22. With respect to the second item of suit property, a categorical settlement had been given in the written statement by the second defendant that it was purchased in the name of his wife Indirani Ammal. The appellant herein can never claim any share or right or title in the said property. The appellant had raised his claim on the basis of a panchayat agreement. However, such document had not been produced and the alleged agreement had not been proved in the manner known to law. Both the Courts below have rejected that particular contention also. Again no questions of law arise much less substantial question of law.
23. The Second Appeal miserably fails and is accordingly, dismissed with costs of the second respondent.
24. In the result:-
i) The Second Appeal is dismissed with costs against the second https://www.mhc.tn.gov.in/judis 11 respondent.
ii) The Second Appeal had already been dismissed against the first respondent by order dated 05.07.2021.
iii) The Judgment and Decree dismissing A.S.No. 47 of 2006 on the file of Additional Sub-Court, Tiruvanamalai, dated 09.01.2007 is confirmed;
iv) The Judgment and Decree dismissing O.S.No. 13 of 1998 on the file of the District Munsif Court, Chengam, dated 07.10.2005 is confirmed.
26.07.2022 Index :Yes/No Internet:Yes/No vsg To
1. District Munsif Court, Chengam.
2. Additional Sub Court, Tiruvanamalai.
C.V.KARTHIKEYAN, J.
vsg https://www.mhc.tn.gov.in/judis 12 Pre-Delivery Judgment made in S.A.No. 17 of 2008 26.07.2022 https://www.mhc.tn.gov.in/judis