Madras High Court
Selvanayaki Keerthana vs E.Devaki on 28 February, 2024
Author: P.T. Asha
Bench: P.T. Asha
C.M.P.No.1407 & 1475 of 2024 of 2023
in S.A.Sr.No.166359 & 166358 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.02.2024
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
C.M.P.Nos.1407 & 1475 of 2024
in
SA.SR.Nos.166359 & 166358 of 2023
[C.M.P.No.1407 of 2024 ]
Selvanayaki Keerthana
... Petitioner/Appellant
Vs.
1.E.Devaki
2.A.Anusanghvi
3.M.P.Shanmugam
P.Kamalam (died)
4.E.Rajeshwari ... Respondents/Respondents
PRAYER in C.M.P.No.1407 of 2024 : Civil Miscellaneous Petition filed
under 151 of Civil Procedure Code to grant leave and permit the petitioner to
challenge the judgement and decree dated 19.08.2021 made in A.S.No.28 of
2015 on the file of the Principal Sub Ordinate Court, Tiruppur.
1/22
https://www.mhc.tn.gov.in/judis
C.M.P.No.1407 & 1475 of 2024 of 2023
in S.A.Sr.No.166359 & 166358 of 2023
[SA.SR.No.166359 of 2023]
Selvanayaki Keerthana
... Appellant
Vs.
1.E.Devaki
2.A.Anusanghvi
3.M.P.Shanmugam
P.Kamalam (died)
4.E.Rajeshwari ... Respondents
PRAYER in SA.SR.No.166359 of 2023: Second Appeal is filed under
Section 100 of C.P.C against the Judgement and Decree dated 19.08.2021
made A.S.No.28 of 2015 on the file Principal District Judge, Tiruppur,
reversing the Judgement and decree dated 01.07.2015 made in O.S.No.231
of 2010 on the file of the Principal Sub Ordinate Court, Tiruppur.
For Appellants : M/s.M.Guruprasad
For Respondents : M/s.S.Rajeni Ramadoss [R.1 and R.2]
2/22
https://www.mhc.tn.gov.in/judis
C.M.P.No.1407 & 1475 of 2024 of 2023
in S.A.Sr.No.166359 & 166358 of 2023
[C.M.P.No.1475 of 2024 ]
Selvanayaki Keerthana
... Petitioner/Appellant
Vs.
1.E.Devaki
2.A.Anusanghvi
3.M.P.Shanmugam
P.Kamalam (died)
4.E.Rajeshwari ... Respondents/Respondents
PRAYER in C.M.P.No.1475 of 2024 : Civil Miscellaneous Petition filed
under Section 5 of the Limitation Act to condone the delay of 760 days in
preferring the Second Appeal against the judgement and decree dated
19.08.2021 made in A.S.No.27 of 2015 on the file of the Principal District
Judge, Tiruppur.
[SA.SR.No.166358 of 2023]
Selvanayaki Keerthana
... Appellant
Vs.
1.E.Devaki
3/22
https://www.mhc.tn.gov.in/judis
C.M.P.No.1407 & 1475 of 2024 of 2023
in S.A.Sr.No.166359 & 166358 of 2023
2.A.Anusanghvi
3.M.P.Shanmugam
P.Kamalam (died)
4.E.Rajeshwari ... Respondents
PRAYER in SA.SR.No.166358 of 2023: Second Appeal is filed under
Section 100 of C.P.C against the Judgement and Decree dated 19.08.2021
made A.S.No.27 of 2015 on the file Principal District Judge, Tiruppur,
reversing the Judgement and decree dated 01.07.2015 made in O.S.No.46
of 2008 on the file of the Principal Sub Ordinate Court, Tiruppur.
For Appellants : M/s.M.Guruprasad
For Respondents : M/s.S.Rajeni Ramadoss [R.1 and R.2]
COMMON ORDER
The Petitions in respect of which the appellant/petitioner is before this Court are as follows:-
i. C.M.P.No.1407 of 2024 – This petition is filed to grant leave and permit the petitioner to challenge the judgement and decree dated 19.08.2021 made in A.S.No.28/2015 on the file of the Principal Subordinate Court, Tiruppur.
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https://www.mhc.tn.gov.in/judis C.M.P.No.1407 & 1475 of 2024 of 2023 in S.A.Sr.No.166359 & 166358 of 2023 ii. C.M.P.No.1475 of 2024 – This petition is filed to condone the delay of 760 days in preferring the Second Appeal against the Judgement and decree dated 19.08.2021 made in A.S.No.27/2015 on the file of the Principal Subordinate Court, Tiruppur.
2. Since the facts which have given rise to these petitions arise out of the common facts though under two suits a common order is being pronounced.
3. SA.Sr.No.166358 of 2023 is filed challenging the judgement and decree passed by the Principal Subordinate Judge, Tiruppur in A.S.No.27 of 2015 which in turn arises from out of the judgement and decree passed by the Principal Subordinate Judge, Tiruppur in O.S.No.46 of 2008. This suit has been filed by the respondents to declare the judgement and decree in O.S.No.27 of 2005 passed by the Sub Judge, Tiruppur which was a suit filed between defendants 1, 2 and 4 as null and void and not binding on the plaintiff and to partition the suit property into 27 shares and allot 10/27 5/22 https://www.mhc.tn.gov.in/judis C.M.P.No.1407 & 1475 of 2024 of 2023 in S.A.Sr.No.166359 & 166358 of 2023 shares to the plaintiff. In the suit the appellant has been impleaded as the 2nd defendant. She is the daughter of the 1st defendant.
4. SA.Sr.No.166359 of 2023 is filed challenging the judgement and decree of the judgement and decree of the Principal Sub Judge, Tiruppur in A.S.No.28 of 2015 which in turn is filed challenging the judgement and decree of the Principal Sub Judge, Tiruppur in O.S.No.231 of 2010 which was originally numbered as O.S.No.119 of 2006. This suit has been filed by the 1st defendant in the suit O.S.No.46/2008, one Shanmugam for declaring the oral family arrangement dated 02.04.2000 which had been reduce into writing on 14.01.2001 as true and valid and having come into force between the parties. This family arrangement has been referred to as Item No.1 in the suit schedule and for a permanent injunction restraining the defendants from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule properties. The plaintiffs in the suit O.S.No.46 of 2008 have been arrayed as defendants 1 and 4 and besides them the deceased P.Kamalam and the 4th respondent herein have been 6/22 https://www.mhc.tn.gov.in/judis C.M.P.No.1407 & 1475 of 2024 of 2023 in S.A.Sr.No.166359 & 166358 of 2023 impleaded as defendants 2 and 3 respectively. The appellant herein has not been impleaded in this suit. The narration of facts is as set out in O.S.No.46 of 2008 (SA.S.R.No.166358 of 2022).
5. It is the case of the plaintiffs in O.S.No.46 of 2008 that the father of the 2nd respondent herein and the husband of the 1st respondent herein, one Eswaran and the 1st defendant, Shanmugam were the sons of M.K.Palanisamy and the 3rd defendant, Kamalam. Besides two sons Palanisamy and Kamalam had a daughter, Rajeswari who is the 4th respondent.
6. The case of respondents 1 and 2 herein is that the suit properties belonged to M.K.Palanisamy and he and his sons Shanmugam and Eswaran who constituted a Hindu Undivided Joint Family had divided their properties under a partition deed dated 07.12.1973. The 4th respondent’s marriage was celebrated spending huge sums of money and she is residing with her husband separately at Udumalpet. Respondents 1 7/22 https://www.mhc.tn.gov.in/judis C.M.P.No.1407 & 1475 of 2024 of 2023 in S.A.Sr.No.166359 & 166358 of 2023 and 2 would contend that the said Palanisamy, Eswaran and Shanmugam were each entitled to a 1/3rd share in the suit properties. Palanisamy died intestate on 27.03.1979 and on his death the co-parcenary consisting of himself and his sons had come to an end and on the coming to the end of the Co-parcenary on 27.03.1979 [prior to the commencement of the Hindu Succession (Amendment Act, 2005)]. The 4th respondent was not a co- parcener and could not claim any rights over the property.
7. The said Eswaran had married the 2nd respondent herein and out of the wedlock the 1st respondent herein was born on 24.02.1991 and she had a right to the property by birth. The said Eswaran had died intestate on 24.11.2002 leaving behind him surviving the respondents 1 and 2 herein as his legal heirs. Even before his death the 1st respondent, Anusanghavi was entitled to a common half share in the share of her father, the remaining half share of her father devolved upon the 2nd respondent herein and the deceased Kamalam i.e each were entitled to a 2/27 th share in the suit property.
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8. After the death of Eswaran; Shanmugam, Kamalam and the 4th respondent decided to take away the properties and in furtherance of this, had fabricated the alleged family arrangement dated 14.01.2001 and on the strength of this family arrangement had filed a suit O.S.No.27/2005 on the file of the Sub Court, Tiruppur and had obtained a decree by suppressing the material facts. The signature of Eswaran found in the alleged family arrangement is not his signature but has been forged by the said Shanmugam, Kamalam and the 4th respondent. In fact, respondents 1 and 2 were kept in the dark about this suit which was filed for a declaration regarding the family arrangement that too after the demise of Eswaran.
9. The respondents 1 and 2 would submit that they had no knowledge about the suit till they received summons in the suit O.S.No.119 of 2006 on the file of the District Munsif, Avisanhi which was subsequently numbered as O.S.No.231 of 2010 and which is the subject matter of S.A.SR.No.166359 of 2023. Therefore, the respondents 1 and 2 had come forward with the above suit.
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10. Shanmugam, the plaintiff in suit OS.No.231 of 2010 had filed a written statement interalia admitting the relationship between the parties but contending that there was no Hindu Undivided Joint Family. He would contend that on 07.12.1973 his father Palanisamy, himself and Eswaran had entered into an registered partition in respect of the ancestral properties. Nowhere in the said partition deed, it is stated that the properties that were divided were the Hindu Undivided Joint Family properties. The said Shanmugam would submit that there was no Hindu Undivided Joint Family between the parties to the suit and from the date of partition each of the sharers were in enjoyment of their respective shares without any hindrance.
11. After the partition, the said Palanisamy died intestate in the year 1979 leaving behind his wife Kamalam, sons, Eswaran and Shanmugam and daughter Rajeswari, the 4th respondent as his legal heirs. Even at that point in time, there was no partition amongst the legal heirs of the said Palanisamy and the income was being divided amicably. 10/22 https://www.mhc.tn.gov.in/judis C.M.P.No.1407 & 1475 of 2024 of 2023 in S.A.Sr.No.166359 & 166358 of 2023
12. Thereafter, Shanmugam and Eswaran had decided to sell one of the landed property by plotting it out into house sites and initial steps in this regard were taken. However, due to certain misunderstanding that arose amongst the family members, the other members had started demanding shares prior to the plotting of the house sites. This resulted in the intervention of the village elders and a panchayat was held on 02.04.2000 wherein the parties had agreed to partition the ancestral properties and this oral agreement was reduced into writing on 14.01.2001 under a family arrangement.
13. Under this family arrangement, the A schedule properties were allotted to the Kamalam and the 4th respondent, the B schedule properties were allotted to Eswaran, the father of the 1st respondent and the husband of the 2nd respondent and the C schedule property was allotted to the share of the said Shanmugam. After this, the sharers took possession of their respective shares and were in enjoyment of the same. No doubt, the family arrangement had not been registered, however, it has been given 11/22 https://www.mhc.tn.gov.in/judis C.M.P.No.1407 & 1475 of 2024 of 2023 in S.A.Sr.No.166359 & 166358 of 2023 effect to and revenue records had been mutated accordingly. The 1st respondent, wife of Eswaran was fully aware about the said family arrangement and the same had been reduced into writing and acted upon. Therefore, the 3rd respondent herein sought to have the suit dismissed.
14. The suit O.S.No.231 of 2010 was nothing but a repetition of the written statement in O.S.No.46 of 2008. Likewise, the written statement of respondents 1 and 2 was nothing but a repetition of the plaint in O.S.No.46 of 2008. Both these suits were instituted on the file of the Sub Judge, Tiruppur. The learned Judge by a common judgment and decree dated 01.07.2015 was pleased to declare the decree in O.S.No.27 of 2005 as null and void and not binding on the plaintiffs in O.S.No.46/2008 but dismissed the relief of partition and also declared that the family arrangement dated 14.01.2001 as a valid and dismissed the relief of permanent injunction for peaceful possession in O.S.No.231 of 2010. Aggrieved by the same, the respondents 1 and 2 herein had filed A.S.Nos.27 and 28 of 2015 on the file of the District Judge, Tiruppur. The 12/22 https://www.mhc.tn.gov.in/judis C.M.P.No.1407 & 1475 of 2024 of 2023 in S.A.Sr.No.166359 & 166358 of 2023 said P.Shanmugam had filed Cross Appeal in A.S.No.28 of 2015 challenging the dismissal of the relief for permanent injunction.
15. The learned Appellate Judge on considering the evidence available on record partly allowed the appeals. The decree and judgement in O.S.No.46/2008 with respect to grant of declaration decreed by the Trial Court is confirmed. With respect to the relief sought for partition, which was originally negatived by the Trial Court the Appeal was allowed and the judgement and decree of the Trial Court was set aside and preliminary decree was passed declaring that the 1st and the 2nd respondents herein were jointly entitled to 86/288 shares, the appellant and the deceased Shanmugam were entitled to 101/288 shares and the deceased 3rd defendant, Kamalam was entitled to 101/288 shares. The decree and judgement passed by the Trial Court in O.S.No231/2010 with respect to grant of decree in respect of oral partition dated 02.04.2000 and family arrangement dated 14.01.2001 was set aside and the judgement referring the relief of permanent injunction passed by the Trial Court was 13/22 https://www.mhc.tn.gov.in/judis C.M.P.No.1407 & 1475 of 2024 of 2023 in S.A.Sr.No.166359 & 166358 of 2023 confirmed. Consequently, the Cross Appeal filed by Shanmugam was dismissed.
16. The appellant now before this Court is the daughter of Shanmugam. She had jointly contested the suit O.S.No.46 of 2008 with her father. She was not made a party in the other suit O.S.No.23 of 2010 which was tried along with the suit O.S.No.46 of 2008. The appellant had not chosen to file a cross objection like her father.
17. In the common affidavit that is filed in support of these petitions the petitioner/proposed appellant would submit that though her father has not challenged the decision relating to the family arrangement dated 14.01.2001 and not questioned the share allotted. However, it is the case of the petitioner that she was put to great hardship since she is entitled to a higher share in the property if the family arrangement is rightly considered.
14/22 https://www.mhc.tn.gov.in/judis C.M.P.No.1407 & 1475 of 2024 of 2023 in S.A.Sr.No.166359 & 166358 of 2023
18. The deponent would further submit that she had left to the USA in the year 2017 for her higher studies and after completing her education she had returned to India only in July, 2023. Her marriage was arranged and solemnized in August 2023. She would submit that from 2017 till August 2023, she had been away from the Country and was pre-occupied with the wedding and therefore could not take steps to prefer the appeal and as a result of which the delay had crept in and she had also sought leave of the Court to challenge the Judgement and decree dated 19.08.2021 made in O.S.No.231/2010 on the file of the Principal Subordinate Court, Tiruppur where she has not been made a party.
19. The respondents on being served have entered appearance and filed a counter affidavit and have also filed certain documents. In the counter affidavit, the 2nd respondent would submit that the petitioner claims a right only under her father, Shanmugam, the 3rd respondent who is very much available in India and who has not sought to challenge the judgement and decree in A.S.No.28/2015. The petitioner has contended 15/22 https://www.mhc.tn.gov.in/judis C.M.P.No.1407 & 1475 of 2024 of 2023 in S.A.Sr.No.166359 & 166358 of 2023 that the delay has crept in because she was not in India from July 2017 to August 2023. However, the respondent would submit that the petitioner was very much in India in the Month of October 2022 and she had visited the Registrar's Office, Avinashi on 19.10.2022 to cancel the General Power of Attorney which she had executed in favour of her father, the 3rd respondent.
20. The respondent would submit that the petitioner is putting forward a false statement that she was not aware of the proceedings when she had appointed her father as her General Power of Attorney. That apart, the petitioner claims only under the 3rd respondent, her father. Her father has already been allotted a share in the property. Therefore, they would submit that no reasons have been given and a false statement has also been made for condoning the delay and for granting leave to challenge the judgement and decree made in A.S.No.28/2015.
16/22 https://www.mhc.tn.gov.in/judis C.M.P.No.1407 & 1475 of 2024 of 2023 in S.A.Sr.No.166359 & 166358 of 2023
21. The learned counsel appearing for the respondents has also enclosed a copy of the affidavit and petition filed in I.A.No.1215 of 2021 filed by the 3rd respondent, Shanmugam in A.S.No.27 of 2015 wherein he had prayed for amending the preliminary decree dated 19.08.2021 as per the calculation memo submitted by him. This application has been filed on 20.12.2021. In the affidavit filed in support of this application, the petitioner’s father has only challenged the same by stating that the share ratio calculated by the Court has an arithmetical error which has to be rectified and had therefore enclosed a calculation memo showing the correct calculations of the shares. The calculation memo has also been recorded and I.A.No.1215 of 2021 was allowed granting shares to the respondents 1 and 2 herein and they were jointly allotted 86/288 shares, the 1st and 2nd defendants i.e. the 3rd defendant herein and the plaintiff herein were jointly allotted 101/288 shares and the 3rd defendant, Kamalam was allotted 101/288 shares.
17/22 https://www.mhc.tn.gov.in/judis C.M.P.No.1407 & 1475 of 2024 of 2023 in S.A.Sr.No.166359 & 166358 of 2023
22. The 4th respondent had also filed an application in I.A.No.1096 of 2021 to review and modify the judgement and decree passed in A.S.No.27 of 2015 by granting 16/48 share to the 4th respondent. On considering the evidence available on record, the Principal District Judge, Tiruppur was please to dismissed the above application.
23. Heard the learned counsels on either side.
24.The petitioner/appellant is a party to the proceedings in O.S.No.46 of 2008. She is also a party to the petition filed by her father in I.A.No.1215 of 2021 in A.S.No.27 of 2015 on the file of the District Judge, Tiruppur. This is an application which has been filed by her father, the 3rd respondent herein for reviewing the judgement and decree in A.S.No.27 of 2015 to the limited extent of re-working the shares of the parties. The suit O.S.No.46 of 2008 was contested by her and both she and her father had engaged the services of the same advocate. Therefore, the petitioner/appellant cannot now feign ignorance about the proceedings. It 18/22 https://www.mhc.tn.gov.in/judis C.M.P.No.1407 & 1475 of 2024 of 2023 in S.A.Sr.No.166359 & 166358 of 2023 is also noteworthy that the power of attorney has been cancelled by the petitioner herein on 19.10.2021 after the application for reviewing the judgement and decree in A.S.No.27 of 2015 had been filed by her father. A perusal of this cancellation deed would indicate the total suppression on the part of the petitioner/appellant. The petitioner/appellant who is a party to the proceedings in O.S.No.46 of 2008 from out of which A.S.No.27 of 2015 emanates has not made any reference to these proceedings but has only referred to the proceedings in O.S.No.27 of 2005 which is the collusive suit filed by her father the 1st respondent, her paternal grandmother and aunt. The petitioner has stated that her father, the 3rd respondent was acting against her interest by contending that he was taking steps to make other arrangements in respect of the petitioner's property. Having participated in the proceedings in the connected suit O.S.No.46 of 2008, the petitioner is not justified in contending that her absence from India has resulted in the delay. The petitioner has been represented by a separate counsel in the First Appeal though both herself and her father had been represented by the same counsel in the Trial Court. 19/22 https://www.mhc.tn.gov.in/judis C.M.P.No.1407 & 1475 of 2024 of 2023 in S.A.Sr.No.166359 & 166358 of 2023
25. The reasons given in the affidavits filed in support of the above petitions are not supported by any evidence and further as rightly pointed out by the learned counsel for the respondent, the petitioner has come over to Indian in the month of October 2022 wherein she has cancelled the power of attorney executed by her in favour of her father. The petitioner is entitled to a share in her father's share. The petitioner's father has himself filed a review and the affidavit filed in support of that review petition, namely, I.A.No.1215 of 2021 would indicate as if the application has been filed on behalf of the petitioner as well though she has been arrayed as the 3rd respondent therein. That review was only to re-work the allotment of shares as there was some arithmetical errors in allocating the shares. The 1st defendant after having accepted the decree appears to have now instigated the petitioner to file the Second Appeal.
26. Therefore, the reasons given for the delay appears to be one based on false statements. Therefore, I am not inclined to condone the 20/22 https://www.mhc.tn.gov.in/judis C.M.P.No.1407 & 1475 of 2024 of 2023 in S.A.Sr.No.166359 & 166358 of 2023 delay in filing the appeal and to grant leave to the petitioner to challenge the judgement and decree in A.S.No.28 of 2015. Accordingly, the C.M.P.Nos.1407 and 1475 of 2024 are dismissed and consequently, the SA.Sr.Nos.166359 and 166358 of 2023 are also stand rejected at S.R. stage itself. No costs.
28.02.2023 Index : Yes/No Speaking order/non-speaking order Neutral Citation: Yes/No shr To
1. The Principal District Judge, Tiruppur.
2. Principal Sub Ordinate Court, Tiruppur.
3.The Section Officer, V.R.Section, High Court, Madras.
21/22 https://www.mhc.tn.gov.in/judis C.M.P.No.1407 & 1475 of 2024 of 2023 in S.A.Sr.No.166359 & 166358 of 2023 P.T.ASHA, J., shr C.M.P.No.1407 & 1475 of 2024 in S.A.SR.No.166359 & 166358 of 2023 28.02.2024 22/22 https://www.mhc.tn.gov.in/judis