Madras High Court
Y.Rajamony (Died) vs Robin on 29 October, 2018
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 27.09.2018
PRONOUNCED ON : 29 .10.2018
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
Second Appeal(MD) No.466 of 2004
1.Y.Rajamony (Died)
2.Janammal (Died)
3.R.Gnanadhasan (Died)
4.R.Yesudhas
5.R.Paul Raj
6.R.Florence Nesa Bai
7.R.Suseela Daisy Bai
8.Santhi Vimala ...Appellants
Vs
1.Robin
2.C.Vincent
3.C.Paul Wilson
4.C.Denson
5.C.Rajan
6.The District Assistant Educational Officer,
Thiruvattar, Thiruvattar Village,
Kanniyakumari District.
7.The District Educational Officer,
Thuckalay, Thuckalay Village,
Kalkulam Taluk, Kanniyakumari District.
8.T.Christy (Died)
9.T.Raj ...Respondents
http://www.judis.nic.in
2
(Appellants 2 to 8 were brought on record as legal heirs of the
deceased sole appellant vide order dated 10.08.2012)
Prayer: The Second Appeal is filed under Section 100 of CPC,
to set aside the judgment and decree in A.S.No.73 of 2002, dated
03.11.2003, passed by the learned District Judge,
Kanniyakumari, confirming the judgment and decree in O.S.No.
188 of 2001, dated 30.04.2002, passed by the learned
Subordinate Judge, Padmanabhapuram.
For Appellants :Mr.K.N.Thambi
For R1 to R5 and R9 :Mr.K.Vallinayagam
Senior Counsel
for Mr.N.Sivakumar
For R6 and R7 :Mrs.Srimathi
Special Government Pleader
***
JUDGMENT
The legal heirs of the plaintiff in O.S.No.188 of 2001 on the file of the Subordinate Court, Padmanabhapuram, are the appellants herein.
2.O.S.No.188 of 2001 originally filed as O.S.No.492 of 1996 on the file of the District Munsif Court, Padmanabhapuram. It was, then, transferred to the Subordinate Court, http://www.judis.nic.in 3 Padmanabhapuram and renumbered as O.S.No.188 of 2001. The said suit had been filed by Y.Rajamony, against six defendants, C.Robin, C.Vincent, C.Paul Wilson, C.Denson, C.Rajan and A.Thomas and also against the District Assistant Educational Officer, Thiruvattar, Thiruvattar Village, Kanniyakumari District and the District Educational Officer, Thuckalay, Thuckalay Village, Kalkulam Taluk, Kanniyakumari District, who were shown as 7th and 8th defendants. The suit had been filed by Y.Rajamony seeking a judgment and decree declaring his right to function as co-manager and co-owner for 1/4 share of Aided Primary and High School at Kattathurai and for a mandatory injunction restraining the 1st to 6th defendants from causing any obstruction for the peaceful possession as co-manager and co- owner.
3.In the plaint, it had been stated that the Aided Primary and High School at Kattathurai was originally founded by Yovan Yesuvadiyan and Isravel Azhagiya Nayagam. The said Yovan Yesuvadiyan was the fore-father of the plaintiff and also the 1 st to 6th defendants. The said Yovan Yesuvadiyan and Isravel Azhagiya Nayagam had entered into a registered agreement on http://www.judis.nic.in 4 06.06.1099 ME, (06.06.1924). In the said agreement, the rights of both of them were defined and also the method of devolution of such rights were determined. They jointly managed the School as co-owner / co-manager. Each had one half share in the said ownership / management . It was provided that if any co-owner dies without leaving any Will, then the person, who is a major and capable of managing the institution will act as co-manager in that place. It was further stated in the plaint that Yovan Yesuvadiyan died issueless on 08.04.1111 ME (08.04.1936). At that time, his younger brother Asirvatham was not alive, but the other brother Yesudasan was alive.
4.The plaintiff is the son of Yesudasan. Asivarvatham had died leaving his children, Chelliah, Paulaiah, Yovan and Thomas. On the death of Yovan Yesuvadian, since his brother Yesudasan did not claim ownership or right of Management, Chellaiah, the son of his other brother Asirvatham, became the co-owner / co- manager. However, it was stated that Chellaiah was co-owner / co-manager only to 1/4 share, namely, one half of the half share of the Yovan Yesuvadiyan. The plaintiff also claimed the other half share, namely, 1/4 share. It is stated by the plaintiff that the http://www.judis.nic.in 5 6th defendant, Thomas is elder to him. It was stated that he was not qualified or capable of functioning of co-owner or co- manager.
5.It was also stated that when Chelliah was the co-owner, his son, Paul Wilson, the 3rd defendant was functioning as correspondence. He was managing the affairs of the school and the properties during the last years of Chellaiah. It was stated that the 3rd defendant has no right subsequent to the death of his father. It was stated that the plaintiff alone has the right to function as co-owner / co-manager for the 1/4 share. It is stated that since the school is functioning under the 7th and 8th defendants, they are also impleaded as defendants. It is under these circumstances, the suit had been filed seeking 1/4 share in the management of the school.
6.In the written statement, it was stated that Yovan Yesuvadiyan and Isravel Azhagiya Nayagam were founders of the Aided Primary and High School, Kattathurai. It was stated that an agreement called as 'Udambadi', dated 06.06.1099 ME (06.06.1924), was entered into between them in respect of the http://www.judis.nic.in 6 management of the school. Chelliah, one of the sons of Asirvatham was unanimously accepted as a competent and proper person on the death of Yovan Yesuvadiyan. It was stated that the plaintiff's father, Yesudasan did not object or dispute Chelliah's succession. In the meanwhile, Packiamuthu w/o. Yovan Yesuvadiyan died. One of Chelliah's brothers Pauliah filed O.S.No.2 of 1121 ME (O.S.No.2 of 1946). The plaintiff was a party to that suit. He did not make any claim. Pauliah's claim was rejected. It was stated that the plaintiff was barred by the judgment in that suit. It was stated that Chellaiah became the absolute successor to the right of Yovan Yesuvadiyan.
7.After the death of Chellaiah, it was stated that the right devolved upon his legal heir. However, since Chelliah had executed a Will, the right devolved on to his son, Paul Wilson. It was stated that the plaintiff has no right to seek right as co- owner or co-manager over the school. It was stated that the 3rd defendant, legatee under the Will of Chellaiah, was functioning as co-manager. There are no dispute in the administration of the school. It was further stated that the suit should be dismissed. http://www.judis.nic.in 7
8.On the basis of the oral and documentary evidence, the followings issues were framed for trial:
“a)Whether the suit was barred by res judicata?
b)Whether the plaintiff has a right to act as a co-owner / co-manager of the school?
c)Whether the plaintiff is entitled for the relief of declaration?
d)Whether the plaintiff is in possession of the School property, if so, whether he is entitled to the relief of permanent injunction?
e)Whether the third defendant has right to act as a co- owner / co-manager of the school?
f)What orders should be passed relating to costs of the suit?”
9.During trial, the plaintiff Y.Rajamony was examined as PW-1. The third defendant Paul Wilson, was examined as DW-1. The plaintiff marked Ex-A1 to Ex-A7. Ex-A1 and Ex-A2 are the Malayalam and Tamil versions of the agreement entered into between Isravel Azhagiya Nayagam and Yovan Yesuvadiyan. Ex- A3 is the written statement filed by Chelliah in O.S.No.113 of 1951. Ex-A4 is the judgment in O.S.No.5 of 1113 ME (O.S.No.5 of 1938). Ex-A5, dated 08.10.1996 is the copy of the Advocate Notice sent by the plaintiff to the defendants. On the side of the defendants, Ex-B1 to Ex-B6 were marked. Ex-B1 and Ex-B2 are the Malayam and Tamil versions of the decree in O.S.No.5 of http://www.judis.nic.in 8 1113 ME (O.S.No.1938). Ex-B3 is the copy of the judgment and decree in O.S.No.2 of 1121 ME. (O.S.No.2 of 1946). Ex-B4 is the judgment in S.A.No.1117 of 1962. Ex-B5 and Ex-B6 are the copies of judgment and decree in O.S.No.40 of 1956.
10.By judgment dated 30.04.2002, the learned Subordinate Judge, Padmanabhapuram, on the basis of oral and documentary evidence, observed that the said School was jonintly founded by Isravel Azhagiya Nayagam and Yovan Yesuvadiyan. They were each entitled to one half share in the ownership / management of the School. Yovan Yesuvadian, died issueless. But, at that time, his younger brother, Asirvatham was not alive. The other brother Yesudasan, was alive. It was found that Chellaiah took charge as co-owner / co-manager in the place of the original founder, Yovan Yesuvadiyan. After the death of Chellaiah, in accordance with the Will, the third defendant, Paul Wilson had taken over the charge as co-owner / co-manager of the School. This has been challenged by the plaintiff, Y.Rajamony, who is the son of Yesudasan, own brother of the original founder, Yovan Yesuvadiyan. The learned Judge examined whether the plaintiff can be granted of 1/4 share in the management of the School. http://www.judis.nic.in 9 The learned Judge found that there were two earlier litigations in O.S.No.113 of 1951 (Ex-A3) and O.S.No.40 of 1956 (Ex-B5 and Ex-B6). The copies of the judgments had also been produced as documents during trial. Ex-B5 related to the other branch of Isravel Azhagiya Nayagam.
11.Ex-A4 related to O.S.No.5 of 1113 ME (5 of 1938). In the said suit, it was decided that the branch of Yovan Yesuvadiyan will have 1/2 share and the branch of Isravel Azhagiya Nayagam will have 1/2 share in the management of the School. Ex-A3 is the copy of the judgment in O.S.No.2 of 1121 ME (O.S.No.2 of 1957). That suit had been filed by Pauliah, the brother of Chelliah, seeking right of co-owner / co-manager. In that suit, the plaintiff herein is the 6th defendant. The learned Judge also examined the method in which the management should devolve, as given in Ex-A1 and Ex-A2. It had been agreed between Isravel Azhagiya Nayagam and Yovan Yesuvadiyan that if either one of the two died without writing a Will, then the next person, who is a major and who is competent, will take over as co-owner/ co-manager. However, if a Will is executed, then the said right will devolve according to the terms of the Will. The http://www.judis.nic.in 10 learned Judge also found that the consequently, there cannot be any further sub-division of 1/2 share, which fell to the branch of Yovan Yesuvadiyan and consequently, rejected the claim of the plaintiff seeking 1/4 share in the co-owner / co-manager of the School.
12.The issue of res judicata, was also taken by the learned Judge. This related to the binding nature or otherwise of the decision in O.S.No.2 of 1121 ME (O.S.No.2 of 1946). In that case filed by Paulaiah, the plaintiff herein was one of the defendants. The judgment therein, was marked as Ex-A3. In that suit, the plaintiff herein remained ex parte. In that suit, an issue framed was whether the Chellaiah had exclusive right to 1/2 share in the co-owner / co-manager. It was decided that the he had such right. It was, therefore, held that the judgment in that suit would act as a res judicata in the present case. Holding as above, the learned Subordinate Judge also held the other issues against the plaintiff and dismissed the suit.
http://www.judis.nic.in 11 A.S.No.73 of 2002:-
13.The plaintiff, who, suffered an adverse finding in O.S.No.188 of 2001, filed the said appeal. This came up for consideration before the District Court, Kanyakumari. By judgment, dated 03.11.2003, the learned District Judge re- appraised the evidence on records. He also framed necessary points for consideration. The learned District Judge found that after the death of Yovan Yesuvadiyan, within three days, Asirvatham also died. The right to manage the School flowed initially to Packiamuthu, wife of Yovan Yesuvadiyan and thereafter, to Chellaiah, the son of his brother, Asirvatham. Chelliah exercised one half right. The learned Distsrict Judge considered the decree in the judgment in O.S.No.2 of 1121 ME (O.S.No.2 of 1946), dated 06.08.1949, which was a suit filed by Pauliah against his three brothers and also against the present plaintiff, who was shown as 6th defendant. Ex-B3 is the copy of the judgment in that suit. The suit had been decreed stating that there was yet another suit in O.S.No.40 of 1956 filed by Isaravel Azhagiya Nayagam, in which also the defendant was a party to the suit. Ex-B5 is the copy of that judgment dated 21.02.1957. http://www.judis.nic.in 12 Ex-B6 is the copy of the decree. Thereafter, Chelliah filed another suit in O.S.No.37 of 1960.
14.The High Court in S.A.No.1117 of 1962, had held that both the parties are entitled for managing the school in alternative years. The learned District Judge, thereafter, examined the contentions of the appellant that he was entitled to 1/4 share in the management. It was found that in yet another suit in O.S.No.5 of 1113 ME (O.S.No.5 of 1938) filed against Packiya Muthu, wife of Yovan Yesuvadiyan and others, the father of the plaintiff was the 3rd defendant. He had not contested the suit. It was further found that the litigation was barred by the principle of res judicata. The learned Judge consequently dismissed the appeal.
S.A.(MD)No.466 of 2004:-
15.The plaintiff, in the suit, who suffered adverse judgments in both the Courts below, has filed the present second appeal. Pending appeal, the sole appellant, who was the plaintiff in the suit died. His legal heirs were brought on record as 2 nd to 8th appellants. The second appellant also died. She was the wife http://www.judis.nic.in 13 of Y.Rajamony. Her legal heirs were already on record as 3rd to 8th appellants. The third appellant also died. A memo was filed that there was no necessity to bring on record the legal heir of the third appellant. This memo was recorded by the Court by order dated 27.07.2018. Simultaneously, a memo was also filed stating that the 8th respondent also died and she did not leaving any legal heir. That memo was also recorded.
16.The second appeal was admitted on the following substantial questions of law:
“a)Whether the lower appellate Court is right in dismissing the appeal when the Udampadi dated 06.06.1099 ME (06.06.1924) clearly says that right of management never comes to an end, since the elderly and educated persons would get the right of management of the school as well as the school property?
b)Whether the lower appellate Court is right in dismissing the appeal when the judgment in S.A.No.1117 of 1962 hold that both of them having right for fess collection?
c)Whether the lower appellate Court is right in dismissing the appeal when the right will accrue only immediately after the death of Chellaiah (ie., 19.08.1996)?”
17.The appellants are the legal heirs of the plaintiff in O.S.No.492 of 1996, which was originally filed in the District Munsif Court, Padmanabhapuram, and subsequently, it was http://www.judis.nic.in 14 transferred to the Subordinate Court, Padmanabhapuram and renumbered as O.S.No.188 of 2001. In this second appeal, the parties will be referred as plaintiff and defendants for the sake of convenience. As stated above, the legal heirs of the plaintiff are appellants and the defendants are the respondents.
18.The entire disputes surround the ownership / management of the Aided Primary and High School at Kattathurai. This school was founded by Isravel Azhagiya Nayagam and Yovan Yesuvadiyan. Both had an equal one half share in the ownership / management of the properties / affairs of the school. They entered into an agreement with respect to the succession of ownership / management. This agreement was called 'Udampadi'. It was dated 06.06.1099 ME, which is equivalent to 06.06.1924. This had been produced as Ex-A1 and Ex-A2. The Malayalam version is Ex-A1 and the Tamil version is Ex-A2. The method of succession had been provided as follows:
“ek;kpy; ahuhdJ xUth; ,we;J Nghdhy; mtUila capypy; gbAs;s jid capy; ,y;yhky; ,Ue;jhy; ,we;j Mspd; mtfhrpfspy; me;j rkak; gpwha G+h;j;jpAk; fhhpaf;fhfwDk; Md xUtiu ,we;j Mspw;F gjpy; epakpf;fTk; Gjjhf epakpf;fg;gl;l Ms; ,e;j clk;ghbapy; $Wk; vy;yh epge;jidfSk; mDrhpj;J ele;J nfhs;s Ntz;baJk;....” http://www.judis.nic.in 15
19.In this appeal, we are concerned with succession to the one half share of the ownership / management of the branch of Yovan Yesuvadiyan. The following genealogy table would be useful to explain the relationship among the parties:
20.Yovan Yesuvadiyan died issueless on 08.04.1111 ME equivalent to 08.04.1936. He left behind two younger brothers, Asirvatham and Yesuvadan. Asirvatham died on 11.04.1936, http://www.judis.nic.in 16 three days after the death of Yovan Yesudhasan. Consequently, the eldest male member at that time was the other younger brother Yesudasan. Yovan Yesuvadian had also left behind his widow, Packiamuthu. She acted as co-owner/co-manager for some period of time. Thereafter, the first son of Asirvatham, by name, Chelliah became the co-owner/co-manager. This was by consent of all the male legal heir including Yesudasan and his son Y.Rajamony, who is the plaintiff in the suit, from which this second appeal has emanated.
21.It had also been found on facts that there were several other litigations among the family members. The first litigation was in O.S.No.2 of 1121 ME (O.S.No.2 of 1946). This was filed by Pauliah claiming a right in the co-owner/co-manager. In that suit, the present plaintiff and his father were shown as 5th and 6th defendants. The judgment in the said suit has been produced as Ex-A3. That suit was dismissed. In that suit, the plaintiff herein remained ex parte. In that suit, Chelliah's right as co-manager / co-owner was recognised. The trial Court in the present case found that the decision in that suit has acted as a res judicata preventing the plaintiff from seeking any right to management or http://www.judis.nic.in 17 owner the affairs / properties of the school. It must be kept in mind that the plaintiff is seeking a right to own / manage 1/4 share in the affairs / properties of the school. He claims 1/4 share as being half of the one half share, which fell to the share of the original founder, Yovan Yesuvadian. I hold that the plaintiff is stretching his clam, a little too far. The plaintiff is bound by Udambadi, agreement entered into between the two original founders, Isravel Azhagiya Nayagam and Yovan Yesudhasan.
22.The method of succession, which they contemplated was that the person to succeed their share should, if there is no testamentary disposition, be chosen from among the hers, because he had attained the age of majority and because he was competent. If there was a testamentary disposition that the legatee under the Will would succeed to the right. They never suggested sub dividing the one half share into further two shares. This position would lead to a situation where if there are more than one successors then each would claim a share and a right to own/manage that fraction of the one half share. This was certainly not the intention of the two founders. They also http://www.judis.nic.in 18 ensured that there are only two persons in management. If the plaintiff's claim for ¼ share is approved, then another sharer would claim 1/8 share and yet another sharer would claim 1/16 share. There would be no end to that process. Too many cooks would only spoil the broth. Therefore, I reject the claim of the plaintiff to 1/4 share in the ownership / management of the properties / affairs of the school. Even otherwise, both the Courts below have stated that his claim of right of ownership / management is barred by the principle of res judicata. The plaintiff deliberately choose to ignore earlier judicial proceedings and did not participate in them thugh impleaded as a party. But very unfortunately, he decided not to participate in the judicial proceeding. The findings in the earlier judgments directly bar the reliefs being considered in this suit. I have no quarrel with the findings of either the trial Court or the first appellate Court in that regard.
23.In the present case, Paul Wilson, the third defendant, had taken over the co-management of the school pursuant to a Will executed by his father Chelliah. That a legatee under a Will can succeed as owner / manager is provided in the 'Udambadi' / http://www.judis.nic.in 19 agreement, by the two original founder. Consequently, I find no infirmity in the judgment of the Courts below on this issue also.
24.The first substantial question of law had been framed on the basis of the right that management would never come to an end and that elderly and educated persons would get right in the management of the school property. I hold such a proposition would only lead to anarchy and mismanagement. This has to be prevented. Consequently, I hold that the lower appellate Court was right in dismissing the appeal and negativing the claim of the plaintiff herein.
25.The second substantial question of law relates to the judgment in S.A.No.1112 of 1962. In that judgment, it was held that the two branches of Isravel Azhagiya Nayagam and Yovan Yesudasan, should be in management in alternative years. That judgment never provided that within the branches, the management should be in alternative years. Consequently again, the lower appellate Court was right in dismissing the appeal. http://www.judis.nic.in 20
26.The third substantial question of law was whether the lower appellate Court was right in dismissing the appeal when the right would accrue only after the death of Chelliah. On the date of the judgment of the lower appellate Court, Chelliah was dead. He had executed a Will. The third defendant, Paul Wilson was the legatee under Will. He had taken over the management under the Will. The lower appellate Court was right in dismissing the appeal.
27.In view of all the above findings, I hold that the second appeal has no merits and has to be dismissed. Consequently, the second appeal is dismissed, however, without costs. The judgment and decree in A.S.No.73 of 2002, dated 03.11.2003, passed by the learned District Judge, Kanniyakumari, and the judgment and decree in O.S.No.188 of 2001, dated 30.04.2002, passed by the learned Subordinate Judge, Padmanabhapuram, are both confirmed and the suit in O.S.No.188 of 2001, on the file of the Subordinate Court, Padmanabhapuram is dismissed.
Index :Yes/No 29.10.2018
Internet :Yes/No
cmr
http://www.judis.nic.in
21
To
1.The learned District Judge, Kanniyakumari.
2.The learned Subordinate Judge, Padmanabhapuram.
3.The District Assistant Educational Officer, Thiruvattar, Thiruvattar Village, Kanniyakumari District.
4.The District Educational Officer, Thuckalay, Thuckalay Village, Kalkulam Taluk, Kanniyakumari District.
5.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 22 C.V.KARTHIKEYAN,J., cmr Pre-Delivery Judgment made in Second Appeal(MD) No.466 of 2004 29.10.2018 http://www.judis.nic.in