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IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. VAIDYANATHAN, J.
Arukutty - Appellant
Versus
Punithavathy & Ors. - Petitioners
S.A.No.374 of 2012 and M.P.No.1 of 2012
Decided On : 21-06-2017
Civil Procedure Code,1908 - Section 100 - Hindu Succession (Amendment) Act, 2005 – Section 6(1) and 6(5) - Hindu Succession Act, 1956 - Hindu Succession Act (Tamil Nadu Act 1 of 1990)- Section 29-A - Registration of Births and Deaths Act, 1969- Section 17(2) and 13(2) - Limitation Act -Article 110 - Evidence Act -Section 77 and 76 - Suit properties - Partition - Equal shares - Decreed - Permanent injunction - Plaintiff is that two items of suit properties originally belonged to one Gounder as his ancestral properties - He died intestate on leaving behind his wife, son and four daughters - Wife died -Thereafter, suit properties devolved on the five children , each one entitled to 1/5 share and his four sisters died - Plaintiff is one of children - Heirs are one and third defendant - Said died and his wife and son are defendants 1 and 2 - All other defendants are heirs of four sisters stated above - He issued a legal notice to defendants for partition - Defendants 1 and 3 alone sent reply objecting to partition and other defendants did not send any reply – Held, first appellate Court, without rendering any finding on limitation aspect, had considered merits of matter and rendered findings thereon to give a quietus to entire issue on hand - Hence, not only on the aspect of limitation, but also on merits of the matter, plaint has got to be rejected - Thus, relief sought for by plaintiff has got to be rejected, which has rightly been rejected by both Courts below - It is settled law from a catena of decisions of Supreme Court and this Court that findings of facts concurrently recorded by trial court, as also by lower appellate court, could not be legally upset by this Court, sitting in Second Appeal under Section 100 CPC unless it is shown that findings are perverse, being based on no evidence or that on evidence on record, no reasonable person could come to that conclusion - Further, scope for interference with concurrent findings of fact, while exercising jurisdiction under Section 100 CPC, is very limited and re-appreciation of evidence is not permissible and if trial court and first appellate court misdirected themselves in appreciating question of law or placed onus on wrong party certainly there is a scope for interference - Second Appeal is dismissed - Miscellaneous Petition is closed.
1. The unsuccessful plaintiff has filed the above Second Appeal against the judgment and decree dated 30.09.2011 in A.S.No.42 of 2011 on the file of the First Additional District Court, Coimbatore, confirming the judgment and decree dated 11.02.2011 in O.S.No.268 of 2008 on the file of the First Additional Subordinate Court, Coimbatore.
2. The case of the plaintiff is that the two items of the suit properties originally belonged to one Ramanna Gounder as his ancestral properties. He died intestate on 17.04.1959 leaving behind his wife Devathal, son Rangasamy @ Raju and four daughters, namely Ramathal, Kaliammal, Sengammal and Rangathal. Ramanna Gounder's wife died in 1965. Thereafter, the suit properties devolved on the five children of Ramanna Gounder, each one entitled to 1/5 share. Rangasamy @ Rasu Gounder and his four sisters died. The plaintiff is one of the children of Rangathal. Rasu Gounder's heirs are one Gopalsamy and the third defendant Sivakami. The said Gopalsamy died and his wife and son are defendants 1 and 2. All the other defendants are heirs of the four sisters stated above. The suit properties are undivided common properties. The plaintiff demanded the defendants for partition. The defendants 1 to 3 are attempting to alienate the suit properties to the third party in collusion with the other defendants. The plaintiff is entitled to 1/15 share in the suit properties and is entitled for partition. He issued a legal notice on 27.03.2008 to the defendants for partition. The defendants 1 and 3 alone sent reply objecting to the partition and the other defendants did not send any reply. Hence, the plaintiff has filed the suit for partition of items No.1 and 2 of the suit properties into fifteen equal shares in each of the properties by metes and bounds with respect to good and bad soil and to allot one such share in each of the suit items to the plaintiff; for permanent injunction restraining the defendants from alienating or encumbering the item Nos.1 and 2 of the suit properties to any third party and for costs.
3. The defendants 1 and 2 filed written statement, stating that the suit properties belonged to Ramanna Gounder ancestrally and the relationship mentioned in the plaint had been admitted by the defendants 1 and 2. The said Ramanna Gounder did not die in 1959 as alleged by the plaintiff, but he died some time in 1948-1949. On his death, the entire suit property devolved on his only son Rangasamy Gounder as the sole surviving coparcener. Ramanna Gounder's widow Devathal died about a year after his death and not in 1965 as alleged by the plaintiff. Any right will vest in the daughters only as coparceners and the Hindu Succession (Amendment) Act, 2005 will have only prospective operation and consequently, none of the daughters would be entitled to any share in the suit properties. While the properties were in the hands of Rangasamy Gounder, his son Gopalsamy is entitled to 1/2 share as coparcener. On 05.09.1988, Rangasamy, his children Gopalsamy and the third defendant partitioned the properties by registered Partition Deed. Some of the particulars given in the suit notice were wrong and they were corrected in the plaint only based on the particulars provided in the reply notice. The plaintiff's mother and her sisters never claimed any right over the suit properties and were never in joint possession. The plaintiff's mother lost her right by ouster and adverse possession. There is no cause of action for filing the suit. The third defendant's written statement is similar to that of the defendants 1 and 2. The defendants 1 to 3 prayed for dismissal of the suit.
4. Before the trial Court, the plaintiff examined himself as P.W.1 and marked Exs.A-1 to A-10. The third defendant examined herself as D.W.1 and filed Exs.B-1 to B-11. The trial Court, on an analysis of the oral and documentary evidence, dismissed the suit, against which, the plaintiff preferred First Appeal, which was also dismissed, against whic
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