Madras High Court
R.Periyasamy ... 5Th vs Chellappa Gounder (Died) on 19 July, 2021
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
S.A.(MD)No.418 of 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.418 of 2007
and
M.P.(MD)No.1 of 2007
R.Periyasamy ... 5th Defendant / Appellant / Appellant
-Vs-
Chellappa Gounder (died)
1.C.Marappan
2.C.Ramasamy ... Plaintiffs 2 & 3 / Respondents 2 & 3/
Respondents
3.Viswanathan
4.Chellammal
5.Veerappan
6.Lakshmi
7.Karpagam
8.Kumar ... Defendants 1 to 3 & 6 to 8/ Respondents 4 to 6 & 8 to 10
Respondents
PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
Code, to set aside the decree and judgment dated 31.07.2006 made in
A.S.No.32 of 2005 on the file of the Subordinate Court, Karur, in
confirming the judgment and decree dated 28.02.2005 made in O.S.No.552
of 2001 on the file of the Additional District Munsif Court, Karur.
https://www.mhc.tn.gov.in/judis
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S.A.(MD)No.418 of 2007
For Appellant : Mr.J.Parekh Kumar
For R1 & R2 : No appearance
For R3 to R8 : exparte
JUDGMENT
This second appeal arises out of partition suit proceedings. The respondents 1 and 2 herein along with their father had filed O.S.No.552 of 2001 on the file of the Additional District Munsif, Karur seeking the relief of partition. During the pendency of the suit, the father of R1 and R2 passed away.
2. The case of the plaintiffs is that the suit property belonged to one Chellappa Gounder. Chellappa Gounder had three sons namely Rasappan, Veerappan and Kittusamy and one daughter by name Arayee Ammal. Arayee Ammal got married to the first plaintiff and through him, begot the other two plaintiffs / R1 & R2 herein. According to the plaintiffs, the suit property was not divided. However, the other co-sharers have fraudulently sold the major portion of the suit property in favour of the fifth defendant Periyasamy. The plaintiffs contended that they can ignore the said sale and ask for partition. With such plaint averments, the suit was laid. The 3rd defendant namely Veerappan filed written statements controverting the plaint averments. The fifth defendant / appellant herein also filed written https://www.mhc.tn.gov.in/judis 2/8 S.A.(MD)No.418 of 2007 statement opposing the suit claim. Based on the divergent pleadings, the trial Court framed the necessary issues. The second plaintiff Marappan examined himself as P.W.1 and one Duraisamy as P.W.2. Ex.A1 to Ex.A12 were marked. The appellant examined himself as D.W.1. Viswanathan / D1 examined himself as D.W.3. One Nachimuthu was examined as D.W.2. Ex.B1 to Ex.B.14 were marked. After considering the evidence on either side, the Court below passed preliminary decree allotting 5/80th share in the suit properties. Aggrieved by the same, the appellant filed A.S.No.32 of 2005 before the Sub Court, Karur. By judgment and decree dated 31.07.2006, the decision of the trial Court was confirmed and the first appeal was dismissed. Questioning the same, this second appeal came to be filed.
3. The second appeal was admitted on the following substantial questions of law:-
“(1) Whether the Courts below are correct in law in holding that the respondents' mother was entitled to 5/80 shares in the suit properties, which belonged to the undivided Hindu joint family when the kartha of joint family property namely Chellappa Gounder died prior to the Hindu Succession Act, 1956?
2. Is it correct in law even assuming without admitting that the respondents' mother was entitled to any share in the suit properties, the right of her has not been ousted, when the vendors of the https://www.mhc.tn.gov.in/judis 3/8 S.A.(MD)No.418 of 2007 defendant / appellant are enjoying the property for more than the statutory period and having the revenue records in their name in respect of the suit properties.?”
4. Though the contesting respondents were served and their names have been printed in the cause list, there is no appearance on their behalf. The learned counsel appearing for the appellant reiterated all the contentions set out in the memorandum of grounds and called upon this Court to answer the substantial questions of law in favour of the appellant and allow this appeal by setting aside the impugned judgment and decree. He submitted that Chellappa Gounder, in whose name the suit property originally stood, died prior to 1956. He drew my attention to the testimony of D.W.3-Viswanathan and contended that Chellappa Gounder must have died even prior to 1951. Viswanathan was aged about 69 years, when he deposed as witness in the year 2006. It means that he was born in the year 1951. Viswanathan had specifically testified that his grand father Chellappa Gounder died even before his birth. According to him, it was the duty of the plaintiffs to establish by positive evidence that Chellappa Gounder was very much alive even after 1956, when Hindu Succession Act came into force. Since they have failed to prove the same, they ought to have been non-suited. He also pointed out that Arayee Ammal got married long time ago. In fact, she died several years prior to the filing of the suit. The suit https://www.mhc.tn.gov.in/judis 4/8 S.A.(MD)No.418 of 2007 property was being enjoyed by the vendors of the appellant as their own absolute properties. He pointed out that the suit property was the self acquired property of Chellappa Gounder. The Court below clearly gave a finding that the properties in question are ancestral properties of Chellappa Gounder. The plaintiff could have claimed share in the ancestral property of Chellappa Gounder, only if they could show that Chellappa Gounder was alive even post 1956. Therefore, he submitted that the substantial questions of law may be answered in favour of the appellant.
5. I carefully considered the contentions of the learned counsel appearing for the appellant and went through the evidence on record. In the plaint, an averment had been made that Chellappa Gounder grand father of R1 and R2 herein died 35 years prior to the institution of the suit. The suit was filed in the year 2001. The stand of the defendants was that Chellappa Gounder died some 45 years prior to the filing of the suit and it is not correct to state that he died some 35 years prior to the filing of the suit. The Court below have given a definite finding that the suit properties were the ancestral of Chellappa Gounder. The appellant does not question the said finding. The only point that arises for determination is when Chellappa Gounder passed away. If I conclude that Chellappa Gounder passed away prior to 1956, then the suit has to be dismissed. If I find that Chellappa https://www.mhc.tn.gov.in/judis 5/8 S.A.(MD)No.418 of 2007 Gounder had died post 1956, then, the plaintiff will obviously have a share in the properties. The Hindu Succession Act came into force on 17.06.1956. The present suit was filed on 19.09.2001. In the plaint, it has been averred that Chellappa Gounder died some 35 years ago. According to the plaintiffs, Chellappa Gounder died some time in 1966.
6. In the written statement, it has been pleaded that Chellappa Gounder died some 45 years prior to the filing of the suit. If that be so, according to the original pleadings, Chellappa Gounder died some time in 1956. The Hindu Succession Act came into force on 17.6.1956. It is only Viswanathan who had set up a plea in his deposition that Chella Gounder died prior to his birth. That was not their case in the written statement. The testimony of Viswanathan runs counter to what has been pleaded in the written statement. The written statement was filed by Veerappan Viswanathan's nephew. Viswanathan does not appear to have filed any written statement. Only during evidence, he introduced the theory that Chellappa Gounder died prior to his birth. According to Viswanathan, he was born in the year 1951. It is safe to assume that Rasappan would have been aged around 25 years in the year 1951. Therefore, Chellappa Gounder could have been aged around 55 years then. If the appellant wants this Court to plea that Chellappa Gounder had passed away before 1951, then, https://www.mhc.tn.gov.in/judis 6/8 S.A.(MD)No.418 of 2007 there must be some definite evidence adduced in this regard. Such evidence is not available. That apart, the family members of Chellappa Gounder have not come on appeal. It is only the subsequent purchaser who has filed this appeal.
7. There is no evidence to show that Chellappa Gounder died prior to 17.06.1956. The courts below therefore rightly concluded that the plaintiffs have a share in the suit property. The plaintiffs were allotted 1/16 th share in the suit property. A doubt arose in my mind if the plaintiffs are entitled to the benefit of the amendment made to Section 6 of the Hindu Succession Act, 1956 as interpreted in Vineeta Sharma Vs. Rakesh Sharma (2020) 9 SCC 1. The answer has to be in the negative because alienation in favour of the appellant had taken place on 27.08.2001 itself, whereas the suit was filed only on 19.09.2001. Probably, that is why, the plaintiffs also did not file any appeal. The substantial questions of law are answered against the appellant.
8. The second appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
19.07.2021 Internet : Yes/No Index : Yes/No rmi https://www.mhc.tn.gov.in/judis 7/8 S.A.(MD)No.418 of 2007 G.R.SWAMINATHAN.J., rmi To
1.The Subordinate Court, Karur
2.The Additional District Munsif Court, Karur.
3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
Judgment made in S.A.(MD)No.418 of 2007 and M.P.(MD)No.1 of 2007 19.07.2021 https://www.mhc.tn.gov.in/judis 8/8