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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G.K.ILANTHIRAIYAN, J.
P.Rukmini(died) & Others – Appellants
Versus
V.Balasubramaniam(died) & Others - Respondents
S.A.No.1983 of 2002
Decided on : 16-03-2020
Civil Procedure Code – Section 100 – For the sake of convenience – Parties are referred to as per their rankings in the trial Court – Suit is filed for partition and mesne profit – Suit properties and other properties were owned by late Ramasamy Pillai – plaintiff and the defendant are grand daughter and grand son of the late Ramasamy Pillai – He had one son, Vellingiri Pillai and his wife Mrs.Kuppammal. Till his death, the properties were jointly enjoyed by the family members – He executed registered Will – According to the said Will, the properties left behind by him have to be enjoyed by the said Kuppammal till her lifetime without any power of alienation and after her lifetime, the properties should go to the heirs of his son, Mr.Vellingiri, namely the plaintiff and the defendant herein –Held, An inference of fact from the recitals or contents of a document is a question of fact – But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law – High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law – A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law – Appeal is allowed.
JUDGMENT :
Prayer : This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 29.08.2001, in A.S.No.45 of 2001 on the file of the II Additional Subordinate Court, Coimbatore, confirming the decree and judgment dated 21.11.2000 in O.S.No.2337 of 1996 on the file of the II Additional District Munsif, Coimbatore.
This second appeal is directed as against the judgment and decree dated 29.08.2001, in A.S.No.45 of 2001 on the file of the II Additional Subordinate Court, Coimbatore, confirming the decree and judgment dated 21.11.2000 in O.S.No.2337 of 1996 on the file of the II Additional District Munsif, Coimbatore.
2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court.
3. The case of the plaintiff in brief is as follows :-
3.1. The suit is filed for partition and mesne profit. The suit properties and other properties were owned by late Ramasamy Pillai. The plaintiff and the defendant are grand daughter and grand son of the late Ramasamy Pillai. He had one son, Vellingiri Pillai and his wife Mrs.Kuppammal. Till his death, the properties were jointly enjoyed by the family members. He executed registered Will dated 09.01.1938. According to the said Will, the properties left behind by him have to be enjoyed by the said Kuppammal till her lifetime without any power of alienation and after her lifetime, the properties should go to the heirs of his son, Mr.Vellingiri, namely the plaintiff and the defendant herein. The said Ramasamy Pillai bequeathed the properties in favour of his wife Kuppammal for her enjoyment till her life time in lieu of maintenance and he died in the year 1938. After his demise, the properties were jointly enjoyed by the family members. While being so, the said Kuppammal also died in the year 1975. After the demise of her son Vellingiri, the defendant turned hostile towards the plaintiff and he is trying to appropriate the entire suit property without providing half share to the plaintiff. Therefore, she caused lawyer notice dated 13.06.1996 call upon the defendant to agree for amicable partition of the suit property. Hence, the suit.
4. Resisting the same, the defendant filed written statement stating that the entire contentions and averments made in the plaint are denied as false, frivolous and vexatious. It is true that the suit property originally belonged to Ramasamy Pillai and he was married to Kuppammal. They had one son, by name Vellingiri. But the said Vellingiri was not leading a responsible life and he was wayward and extravagant. The plaintiff and the defendant are his son and daughter. Therefore, the said Ramasamy Pillai to safeguard his properties, executed a Will dated 09.01.1938 and it was registered one. He never intended to give any life estate to his wife or any absolute right. No such recital is there in the Will and in fact, he intended and desired to give the properties to the heirs of his son, and till such time the property should be managed by his wife and maintain the family till her life time and after her lifetime, the suit property should be taken by the heirs born to Vellingiri. Therefore, at the time of executing the Will, the law contemplated only male issues and did not include the female issues of a person. Thus, on interpretation the defendant alone became entitled to the suit property on the death of Ramasamy Pillai and Kuppammal. The plaintiff is not a heir as contemplated under the Will and as such she is not entitled to have any share or right in the suit property. Further, he denied that after demise of the said Kuppammal and their father Vellingiri, the suit property was enjoyed by all the members of the family. The plaintiff is living in Udumalpet Taluk along with her husband, and immediately after death of their father Vellingiri Pillai, the plaintiff caused legal notice dated 29.03.1983 and the defendant suitably replied by the reply notice dated 21.04.1993. Once again, she sent anot
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