Back
IN THE HIGH COURT OF MADRAS
T. RAVINDRAN, J.
Thiruvengadam and Ors. – Appellants
Versus
Selvanathan – Respondent
S.A. No. 377 of 2008
Decided On : 31-03-2021
Constitution of India 1950- Article 239,239-A-Hindu Succession Act 1956-Section3,4- Code of Civil Procedure 1908- Order 6 rule1-Indian Evidence Act- Section 68- Indian Registration Act 1908-Proof of document required by law to be attested- Administration of Union territory-Creation of local legislative or council of ministers or both for certain union territories-Definition-Overriding effect of Act-Pleading- plaint 'A' schedule property belonged to Amirthavally @ Veerammal, who died leaving behind her sons and daughters namely, Selvanathan, Somu .Thiruvengadam @ Angappan. Deceased son Kothandapany and her daughter, Rajeswari @ Angammal. It is stated that the deceased son Kothandapani died leaving behind his wife Rukkumani (the fourth plaintiff) and his son Yogagnany. Thus according to the plaintiffs, the plaintiffs 1 to 3 and the first defendant are each entitled to 1/5 share and the plaintiffs 4 and 5, as the legal heirs of the deceased Kothandapani, are together entitled to 1/5 share in the plaint 'A' schedule property and it is stated that Amirthavally @ Veerammal had sold her other properties and utilised the proceeds for converting the 'A' schedule property into a kalyana Mandapam. It is also the case of the plaintiffs that the first defendant, who is enjoying the plaint 'A' schedule property, is refusing to give their lawful share in the same as well as their lawful share in the income derived from the plaint 'A' schedule property from the date of the death of Amirthavally @ Veerammal. Thus according to the plaintiffs, they are entitled to 4/5 share in the plaint 'A' schedule property as well as 4/5 share in the income derived from the plaint 'A' schedule property from the date of the death of Amirthavally @ Veerammal. It is further stated that some portions of the kalyana mandapam are let out as three shops and the first defendant is getting an overall income of Rs. 15,000/- per month and also put forth the case that though the plaintiff had made several demands for amicable partition, as the first defendant had not agreed to the same, they have been necessitated to lay the suit against the defendants for partition, past and future mesne profits and for other reliefs. As regards the other pleas made by the plaintiffs in the plaint, as they pertain to the plaint 'B' schedule properties, they are not adverted to in the present second appeal as such. However, the point to be noted is that qua the plaint 'B' schedule properties, though the plaintiffs would claim partition in the same also and according to them as the donation made by their grand mother Arunthavathammal qua the plaint 'B' schedule properties is valid as regards 1/8 share as per the customary law practised in Pondicherry, accordingly, they have claimed only partition of 4/5 share out of 7/8 share in the plaint 'B' schedule properties by metes and bounds as well as the mesne profits with reference to the same from the date of the suit till the delivery of possession and put forth the case that inasmuch as the first defendant had unlawfully alienated the 'B' schedule properties in favour of the second defendant vide the sale deed-Appeal against the judgment and decree- plaintiffs having admitted the execution of the donation deed in favour of the first defendant and therefore, as rightly contended by the first defendant's counsel, as provided under the proviso to Section 68 of the Indian Evidence Act, it shall not be necessary for the first defendant to call the attesting witnesses in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied- As the same had not been disposed of or dealt with in connection with the applicability of the Hindu Succession Act 1956, vis-a-vis, the customary law followed in Puducherry, in such view of the matter, the said decisions, as held earlier, are found to be not useful to determine the issue involved in this matter. On the other hand, it is found that they had been decided considering the law applicable to the parties involved in those matters and in such view of the matter, as in those decisions, the issue had not been raised as to whether the local customary law followed in Puducherry should only be applied even after the applicability of the Hindu Succession Act, 1956 had come into force to the Union Territory of Pondicherry with effect from 01.10.1963 and furthermore, the substantial questions of law formulated in this second appeal are accordingly answered against the plaintiffs and in favour of the first defendant- Judgment and decree on the file of the III Additional District Court, Pondicherry, reversing the judgment and on the file of the Principal Subordinate Court, Pondicherry, as regards the plaint 'A' schedule property are set aside and consequently, the judgment and decree passed by the trial court are confirmed. Accordingly, the second appeal is allowed with costs. Consequently connected miscellaneous petition, if any, is closed-Appeal allowed
JUDGMENT :
T. Ravindran, J.
1. Challenge in this second appeal is made to the judgment and decree 19.12.2008 passed in A.S. No. 176/2006 on the file of the III Additional District Court, Pondicherry, reversing the judgment and decree dated 18.09.1998 passed in O.S. No. 610/1996 on the file of the Principal Subordinate Court, Pondicherry.
2. For the sake of convenience, the parties are referred to as per their rankings in the trial court.
3. The first defendant in O.S. No. 610/1996 is the appellant in the second appeal.
4. Suit for partition, past and future mesne profits and to set aside the sale deed dated 22.08.1989 executed by the first defendant in favour of the second defendant in respect of 4/5 of 7/8 share of the plaintiffs in the plaint "B" schedule properties as not binding on the plaintiff's.
5. Though the suit has come to be laid by the plaintiffs for both the plaint 'A' schedule and 'B' schedule properties, it is found that based on the materials placed on record, the trial court had dismissed the plaintiffs' suit in entirety. On the appeal preferred by the plaintiffs, the first appellate court, on an appreciation of the materials placed on record, was pleased to partly allow the appeal preferred by the plaintiffs only in respect of the plaint 'A' schedule property and partly dismissed their appeal qua the plaint 'B' schedule properties and thereby the first appellate court had confirmed the dismissal of the plaintiffs' suit qua the plaint 'B' schedule properties vide its impugned judgment. Challenging the judgment and decree of the first appellate court in allowing the plaintiffs' suit qua the plaint 'A' schedule property as determined by it, the first defendant has preferred the second appeal. As against the dismissal of their suit qua the plaint 'B' schedule properties, the plaintiffs' have not thrown any challenge nor preferred any cross objection in the present second appeal laid by the first defendant. Therefore, it is evident that the dismissal of the plaintiffs' suit qua the plaint 'B' schedule properties has attained the finality. In such view of the matter, we have to focus the case projected by the parties only as regards the plaint 'A' schedule property. Hence, the pleas put forth by the respective parties qua the plaint 'A' schedule property are alone adverted to in this second appeal.
6. The case projected by the plaintiffs qua the plaint 'A' schedule property, in brief, is that the plaint 'A' schedule property belonged to Amirthavally @ Veerammal, who died on 09.10.1984 leaving behind her sons and daughters namely, Selvanathan, Somu (the plaintiffs 1 and 2), Thiruvengadam @ Angappan (the first defendant), the deceased son Kothandapany and her daughter, Rajeswari @ Angammal (the third plaintiff). It is stated that the deceased son Kothandapani died leaving behind his wife Rukkumani (the fourth plaintiff) and his son Yogagnany (the fifth plaintiff). Thus according to the plaintiffs, the plaintiffs 1 to 3 and the first defendant are each entitled to 1/5 share and the plaintiffs 4 and 5, as the legal heirs of the deceased Kothandapani, are together entitled to 1/5 share in the plaint 'A' schedule property and it is stated that Amirthavally @ Veerammal had sold her other properties and utilised the proceeds for converting the 'A' schedule property into a kalyana Mandapam. It is also the case of the plaintiffs that the first defendant, who is enjoying the plaint 'A' schedule property, is refusing to give their lawful share in the same as well as their lawful share in the income derived from the plaint 'A' schedule property from the date of the death of Amirthavally @ Veerammal. Thus according to the plaintiffs, they are entitled to 4/5 share in the plaint 'A' schedule property as well as 4/5 share in the income derived from the plaint 'A' schedule property from the date of the death of Amirthavally @ Veerammal. It is further stated that some portions of the kalyana mandapam are let out as three shops and the firs
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
