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2013 Supreme(Mad) 2006
HIGH COURT OF JUDICATURE AT MADRAS
M. JAICHANDREN & M.M. SUNDRESH, JJ.
K.K. Karthikeyan & Others
Versus
C.R. Deivasigamony Chetty & Others
Original Side Appeal No.344 of 2008
Decided on: 17-06-2013
Advocate Appeared
For the Appellants:K.P. Gopalakrisnan, Advocate.
For the Respondents:R1, R3 to R6, No Appearance, R2, M.K. Hidayathullah, Advocate.
The appellants failed to prove the allegation of nullity of the judicial proceedings and the suit was barred by limitation under Section 59 of the Limitation Act.
Headnote:
nullity - Trust properties - Section 59 of the Limitation Act - C.S.No.119 of 1969 - The court held that the suit filed by the appellants is barred by limitation as the deceased person died before the period of limitation under Section 59 of the Limitation Act expired. The appellants failed to prove the allegation of nullity of the judicial proceedings.
Fact of the Case:
The appellants, legal heirs of late Kalavai A.Kandasamy Chetty, filed a suit for declaration and possession of trust properties. They contended that the earlier decree was a nullity as the deceased was insane during the earlier proceedings and the properties were wrongly included in the decree.
Finding of the Court:
The court found that there was no evidence to support the claim of insanity and that the suit was barred by limitation under Section 59 of the Limitation Act. The court dismissed the appeal, stating that the appellants failed to prove the allegation of nullity.
Issues: The issues included the validity of the earlier decree, possession of properties, entitlement to mesne profits, and the genuineness of the alleged Will.
Ratio Decidendi: The court held that the suit was barred by limitation as the deceased person died before the period of limitation expired. The appellants failed to substantiate the claim of nullity of the judicial proceedings.
Final Decision: The Original Side Appeal was dismissed with no order as to costs.
M.M. Sundresh, J.
1. The unsuccessful plaintiffs, who have filed a suit in C.S.No.523 of 1983 for declaration and the consequential relief of possession, have preferred this Original Side Appeal.
2. Facts in brief:
2.1 The appellants are the legal heirs of late Kalavai A.Kandasamy Chetty. A suit was filed in C.S.No.119 of 1969 for framing a scheme and other reliefs in respect of a Trust created by late Kalavai Narayanasamy Chetty. The said late Kalavai Narayanasamy Chetty executed a Will bequeathing certain properties for charitable purpose. In the said suit filed in C.S.No.119 of 1969, the deceased late Kalavai A.Kandasamy Chetty was arrayed as the first defendant. Even though vakalath was entered on his behalf, no written statement was filed. Accordingly, he was set ex-parte. By judgment and decree, dated 21.01.1972, a Scheme decree was passed in respect of some of the suit properties. Thereafter, the appellants, who are the legal heirs of late Kalavai A.Kandasamy Chetty, have come forward with the present suit in C.S.No.523 of 1983. The suit was filed on 16.03.1977 and consequentially, numbered in the year 1983 as the appellants filed an Application to declare them as in forma pauperis.
2.2. In the said suit, the appellants have contended that late Kalavai A.Kandasamy Chetty was insane during the pendency of the earlier suit. There is no limitation in filing the subsequent suit as it would start from the date of the knowledge and the unprobated will ought not to have been the basis for framing the scheme. Some of the properties were wrongly included in the earlier decree. However, considering the materials available on record and after proper analysis, the learned single Judge was pleased to reject the suit by dismissing it. Challenging the judgment and decree passed by the learned single Judge, this Original Side Appeal has been filed.
3. Before the learned single Judge, the following issues were framed:
(i) Whether the plaintiffs are entitled to a declaration declaring that the decree of this Court passed in C.S.No.119 of 1969 is a nullity and is of no force and effect?
(ii) Whether the defendants are liable to deliver to the plaintiffs possession of the properties mentioned in Schedule 'A' to the plaint?
(iii) Whether the plaintiffs are entitled to mesne profits as prayed for?
(iv) Whether the judgment and decree in C.S.No.119 of 1969 has reached a finality inasmuch as late Kalavai
(v) Whether the decree in C.S.No.119 of 1969 passed on the basis of the Schedule 'A' and 'A-1' properties made in the alleged Will dated 29.09.1898 is valid and enforceable?
(vi) Whether the alleged Will dated 29.09.1898 is a genuine document executed by late Kalavai Narayanaswamy Chetty?
Kandasamy Chetty was alive on the date of the above decree viz., 21.01.1972 and he did not file an appeal against the same?
(vii) Whether the decree in C.S.No.119 of 1969 passed after late Kalavai Kandasamy Chetty the first defendant in the said suit is either binding on him or the plaintiffs who are his legal representatives?
(viii) Whether the plaintiffs 2 and 3 herein are entitled to recover possession from defendants 1 to 3 of the Trust properties in Schedule 'A-1' as per the terms of the Trust deed dated 12.05.1888 and as per the judgment and decree in O.S.A.No.51 of 1954?
(ix) Whether the suit is bad for mis-joinder or non-joinder of parties?
(x) Whether the plaintiffs have removed the inscribed stones signifying the Door No.16, Anna Pillai Street, Madras-1 property as belonging to the Charities, prior to institution of this Suit?
(xi) Whether the suit filed against the 2nd defendant in his personal capacity is maintainable in law?
(xii) Whether proper and correct court fee has been paid towards the relief for possession and mesne profits?
(xiii) Whether the suit is barred by res-judicata and whether there is a promissory estoppal and estoppal by representation disabling the plaintiff to take the plea of nullity of the decree in C.S.
