Madras High Court
Radhamani vs Umamaheswaran on 10 June, 2022
Author: J.Nisha Banu
Bench: J.Nisha Banu
C.R.P.PD.No.4007 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.06.2022
C O R A M:
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.R.P.PD.No.4007 of 2014,
C.R.P.PD.No.2425 of 2016
and M.P.No.1 of 2014
Radhamani ... Petitioner in C.R.P.PD.No.4007 of 2014
Vs.
1.Umamaheswaran
2.Ramasamy Goundar
3.Sampath Kumar
4.Pazahnisamy
5.Jayammal
6.Vijayan
7.Shanthi
8.Ravikumar
9.Navamani
10.Thilagam
11.Vijayalakshmi
12.Government of Tamilnadu
By its District Collector,
Thiruchengode Road, Namakkal Town,
Namakkal District.
13.The Tahsildar
Rasipuram Town and Taluk
Namakkal District. ... Respondents in C.R.P.PD.No.4007 of 2014
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C.R.P.PD.No.4007 of 2014
Periyakkaal (deceased) ... Petitioner in C.R.P.PD.No.2425 of 2016
vs.
Varadhappa Gounder(deceased)
Seerangarayan (deceased)
Sakthivel (deceased)
1.Umamaheswaran
2.Ramasamy Goundar
3.Sampath Kumar
4.Pazahnisamy
5.Jayammal
6.Vijayan
7.Shanthi
8.Ravikumar
9.Navamani
10.Thilagam
11.Vijayalakshmi ... Respondents in C.R.P.PD.No.2425 of 2016
PRAYER in C.R.P.(PD).No.4007 of 2014: Civil Revision Petition filed
under Article 227 of Constitution of India praying to set aside the order and
decreetal order dated 26.02.2014 passed in I.A.No.69 of 2013 in O.S.No.62
of 2010 on the file of the Subordinate Court, Rasipuram.
PRAYER in C.R.P.(PD).No.2425 of 2016: Civil Revision Petition filed
under Article 227 of Constitution of India praying to direct the Subordinate
Court, Rasipuram to take on file the unnumbered I.A.No. Of 2014 in
O.S.No.62 of 2010 on the file of the Subordinate Court, Rasipuram by setting
aside the return with direction to the lower court to number the same and
dispose the application on merits.
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C.R.P.PD.No.4007 of 2014
For Petitioner in both CRPs : Mr.C.Jagadish
For Respondents
in C.R.P.No.4007 of 2014 : M/s.P.Veena for R2, R5 to R7
No appearance for R3,R4,
R8 to R10 and R11.
Dr.S.Suriya for R12 and R13
Additional Government Pleader
For Respondents
in C.R.P.No.2425 of 2014 : M/s.P.Veena
for M/s.T.R.Rajaraman
for R5 and R6.
No appearance for R1 to R4,
R7 to R11
COMMON ORDER
C.R.P.No. 4007 of 2014 has been filed to set aside the order dated 26.02.2014 passed in I.A.No.69 of 2013 in O.S.No.62 of 2010 on the file of the Subordinate Court, Rasipuram.
C.R.P.No.2425 of 2014 has been filed to direct the learned Subordinate Judge, Rasipuram to take on file the unnumbered I.A.No. of 2014 in O.S.No.62 of 2010 on the file of the Subordinate Court, Rasipuram by setting aside the return with direction to the lower court to number the same and dispose the application on merits. Page No:3/10 https://www.mhc.tn.gov.in/judis C.R.P.PD.No.4007 of 2014
2. The petitioner is the second plaintiff and the respondents No.1 to 11 are the defendants in the suit. The petitioner and her mother/1st plaintiff have filed suit for declaration and permanent injunction in respect of the suit property on the basis of a Will allegedly executed by the petitioner's mother Periyakkal (deceased) who filed the suit originally as a plaintiff. The said Periyakkal claims that as the whereabouts of her second son Sreerangarayan, the brother of the petitioner herein was not known for more than 14 years, the said Sreerangarayan is declared civil death and his share in the joint family property shall devolve upon Periyakkal as a clause I legal heir and in such a way, she acquired the share in the suit property. On that basis, she filed the suit against her own husband/1st defendant and during the pendency of the suit, she died and the 1st defendant also died. The present petitioner herein has been impleaded himself as 2nd plaintiff in the suit claiming that his mother executed a Will in respect of her share in the suit property. Thereafter, I.A.No.69 of 2013 in O.S.No.62 of 2010 has been filed by the petitioner to declare the said Sreerangarayan as civilly dead person and for that purpose, she wants to implead the legal heirs of Sreerangarayan Page No:4/10 https://www.mhc.tn.gov.in/judis C.R.P.PD.No.4007 of 2014 as proposed respondents No.15 and 16 as party defendants in the suit. In this regard, the first defendant raised a plea in the written statement that having slept for more than 12 years, now the plaintiff wants to include a prayer seeking declaration to declare the said Seerangarayan as civilly dead person is unjust, the fact of the civil death was known to the petitioner/plaintiff at the time of filing the suit itself. Therefore, the relief sought by the plaintiff is barred by limitation and the intention of the plaintiff is to protract the proceedings. The Court below dismissed the application as devoid of merits for the reason that the said proposed parties are not proper and necessary party to the present suit. Aggrieved by the order of the Court below, the petitioner filed the present Civil Revision Petition.
3. Learned counsel for the petitioner submitted that the learned Judge has not properly appreciated the law reported in 2004 (10) 131 SC 'LIC of India v. Anuratha' wherein, the Hon'ble Apex Court has ruled that the presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person whose life or death is in issue and there is no presumption as to the date or time of death. Thus, the Page No:5/10 https://www.mhc.tn.gov.in/judis C.R.P.PD.No.4007 of 2014 reasoning of the learned Judge that even the proposed amendment is barred by limitation is wholly without any basis because there is no presumption as to the time of death.
4. This Court has perused the entire materials available on record.
5. The law laid down by the Hon'ble Apex Court (cited supra) is that presumption relates only to the factum of death of the person whose life or death is in issue and there is no presumption as to the date or time of death. In paragraph Nos.14 and 15, it is held as follows:
“14.......... There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. An occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an authority who is called upon to decide as to whether a person is alive or dead. So long as the dispute is not raised before any forum and in any legal Page No:6/10 https://www.mhc.tn.gov.in/judis C.R.P.PD.No.4007 of 2014 proceedings the occasion for raising the presumption does not arise.
If an issue may arise as to the date or time of death the same shall have to be determined on evidence-direct or circumstantial and not by assumption or presumption. The burden of proof would lay on the person who makes assertion of death having taken place at a given date or time in order to succeed in his claim. Rarely it may be permissible to proceed on premise that the death had occurred on any given date before which the period of seven years' absence was shown to have elapsed. “ In view of the settled presumption of law, the Court below has to decide as to whether the proposed parties are necessary parties to the suit and for the said reasons, I.A.No.69 of 2013 is remanded back to the Court below.”
6. The prayer sought for in CRP.No.2425 of 2016 is for direction to the learned Sub Judge, Rasipuram to take up the unnumbered I.A. on file. The learned Judge rejected the said unnumbered Interlocutory Application on finding that the petitioner had filed interlocutory application in a piecemeal Page No:7/10 https://www.mhc.tn.gov.in/judis C.R.P.PD.No.4007 of 2014 manner only with an intention to protract the trial of the suit.
7. In view of the reasons pointed out by this Court in the order passed in C.R.P.PD.No.4007 of 2014, this Court feels it suffice, to remand back the unnumbered I.A. to the file of Subordinate Court, Rasipuram for passing orders afresh after numbering the same.
8. In the result, these Civil Revision Petitions are allowed with the following directions:
(i) impugned order dated 26.02.2014 passed in I.A.No.69 of 2013 in O.S.No.62 of 2010 on the file of the Subordinate Court, Rasipuram and impugned order dated 15.10.2014 passed in unnumbered I.A.No. of 2014 in O.S.No.62 of 2010 on the file of the Subordinate Court, Rasipuram are set aside.
(ii) both matters are remanded back to the Court below and the learned Sub Judge, Rasipuram is directed to take up the Interlocutory applications on file and pass appropriate orders on merits within a period of three(3) months from the date of receipt of copy of this order.
Page No:8/10 https://www.mhc.tn.gov.in/judis C.R.P.PD.No.4007 of 2014 Consequently, connected miscellaneous petition is closed. No order as to costs.
10.06.2022 msv Index:Yes/No Internet:Yes/No Speaking order: Non-speaking order To
1. The Sub Judge, Subordinate Court, Rasipuram
2. District Collector Government of Tamilnadu Thiruchengode Road, Namakkal Town, Namakkal District.
3.The Tahsildar Rasipuram Town and Taluk Namakkal District.
Page No:9/10 https://www.mhc.tn.gov.in/judis C.R.P.PD.No.4007 of 2014 J.NISHA BANU,J.
Msv C.R.P.PD.No.4007 of 2014, C.R.P.PD.No.2425 of 2016 and M.P.No.1 of 2014 10.06.2022 Page No:10/10 https://www.mhc.tn.gov.in/judis