CHINNATHANGAM (*) DIED vs THERESAMMAL - 2023 Supreme(Online)(MAD) 18088

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2023 Supreme(Online)(MAD) 18088

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21.09.2023 CORAM THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY S.A.Nos.373 and 374 of 1997 S.A.No.373 of 1997
1.Y.Chinnathangam (died)
2.Mary Angel 3.Mariammal
4.Mary Stella Roseling
5.James Carmel Paulraj (died)
6.Daisy Metilda
7.S.Joseph Selvaraj 8.Delphin Quorettee A4 to A8 are bring on record as LRs. of the deceased A1, as per order dated 26.02.2019 in C.M.P.No.10693 to 10695 of 2016 in S.A.No.373 of 1997.
9.G.Veronikam
10.Brindha Merin AA9 and 10 are brought on record as LRs of the deceased 5th appellant vide Court order dated 23.09.2020 made in C.M.P.(MD).No.1354, 1358 and 1359 of 2020 in S.A.No.373 of 1997 by this Court. ... Appellants vs.
1.Y.Theresammal
2.Swamidhas 3.Sthanislaus
4.Mariathangam
5.S.Vincent Raj (died) 6.S.Aruldhasan (died)
7.Maria Pushpam
8.Y.Ponnammal
9.Wilson
10.G.Nelson
11.Alson Sobitha Raj
12.Celesti Bai 13.Mary Allby
14.V.Prakash Raj
15.Carol Joseph Raj
16.Benitta Mary Redleene respondents 13 to 16 are brought on record as LRs of the deceased R5 vide Court order dated 21.04.2022 made in C.M.P.(MD).No.2682 of 2022 in S.A.No.373 of 1997.
17.Nirmala
18.A.Geetha 19.A.Prema respondents 17 to 19 are brought on record as LRs of the deceased 6th respondent vide Court order dated 19.07.2023 made in C.M.P.(MD).Nos.10649, 10651 and 10654 of 2022 in S.A.No.373 of 1997. ... Respondents Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure, against the judgment and decree of the learned Principal District Judge, Kanyakumari District at Nagercoil in A.S.No.18 of 1993 and A.S.No.20 of 1993, dated 15.12.1995, on the file of Subordinate Judge, Padmanabhapuram, pursuant to the judgment and decree in O.S.No.43 of 1985, dated 27.11.1992.
For A4, A6 and A10 : Mr.N.Rhamadullah For A3 : Mr.G.Madhavan A1, A2 and A5 died For Respondents : Mr.M.Vallinayagam, Senior counsel for M/s.K.Elil Selvi For R13 to R17 & R19 : Mr.C.Vakeeswaran R5 and R6 died R2 to R4, R7, R8 and R10 dismissed S.A.No.374 of 1997 Y.Theresammal ... Appellant vs.
1.A.Swamidhas(died)
2.Sthanislaus
3.Chainnathangam (died)
4.Mrs.E.Mary Angel(deceased)
5.A.Mariammal 6.Mariathangam
7.S.Vincent Raj (died)
8.Aruldhasan(died)
9.Mariapushpam
10.Ponnammal
11.Wilson 12.Nelson
13.Alson Sobitha Raj
14.Celesti Bai
15.D.Dennis Rex (died)
16.Louis Mary Julius
17.Josephin Mary Pandian
18.Arul Xavier (died)
19.D.John Jaisingh RR15 to 19 are brought on record as LRs of deceased 4th respondent vide Court order dated 16.12.2003 in C.M.P.No.11022 of 1999.
20.A.Nirmala
21.A.Geetha 22.A.Prema RR 20 to 22 brought on record as LRs of the deceased R8 vide order dated 02.03.2010 made in M.P.Nos.1 to 3 of 2007 in S.A.No.374 of 1997.
23.Stella Roelin
24.Daicy Mettilla
25.Selvaraj
26.Dolphin Koratti
27.Ranikkam
28.Brientha Respondents 23 to 28 are brought on record as LRs of the deceased R3 vide Court order dated 29.03.2022 made in C.M.P.(MD).Nos.2824 to
2829 of 2019 in S.A.No.374 of 1997.
29.M.Jesu Stella Bai
30.D.Annie Sophia Rexline
31.David Rex Respondents 29 to 31 are brought on record as LRs of the deceased R15 vide Court order dated
29.03.2022 made in C.M.P.(MD).Nos.2824 to
2829 of 2019 in S.A.No.374 of 1997.
32.Mary Allby
33.V.Prakash Raj
34.Carol Joseph Raj
35.Benitta Mary Redleene Respondents 32 to 35 are brought on record as LRs of the deceased R7 vide Court order dated 04.04.2022 made in C.M.P.(MD).No.3011 of 2022 in S.A.No.374 of 1997. 36.A.Rose Antony Joys
37.A.Rabinson
38.A.Subin respondents 36 to 38 are brought on record as LRs of the deceased 18th respondent vide Court order dated 19.07.2023 made in C.M.P.(MD).Nos.8423, 8426 and 8427 of 2023 in S.A.No.374 of 1997. ... Respondents Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure, against the judgment and decree of the learned Principal District Judge, Kanyakumari District at Nagercoil in A.S.No.18 of 1993 and A.S.No.20 of 1993, dated 15.12.1995, pursuant to the judgment and decree in O.S.No.43 of 1985, dated 27.11.1992, on the file of the Subordinate Judge, Padmanabhapuram.
For Appellant :Mr.M.Vallinayagam, Senior counsel for M/s.K.Elil Selvi For R7 : Mr.C.Vakeeswaran For R5, R16 to R19 : Mr.R.P.Ramachandran For R9 : Mr.V.Angasamy R1, R2, R3, R4, R8, R15 and R16 died

COMMON JUDGMENT

These Second Appeals have been filed against the judgment and decree passed by the Principal District Judge, Kanyakumari District at Nagercoil in A.S.Nos.18 and 20 of 1993, dated 15.12.1995, pursuant to the judgment and decree passed by the Subordinate Judge, Padmanabhapuram. in O.S.No.43 of 1985, dated 27.11.1992.

2. While admitting these second appeals, this Court, on

31.03.1997, framed the following substantial questions of law:

(i) Whether the finding of the lower Court that the share of Arulappan the father of Yestak Nadar who died in the year 1941 devolved not only to his son Yestak Nadar but also to his wife and daughters under the provisions of Travancore Christian Succession Act is correct?

(ii) Whether the determination of share to the plaintiff and defendants 4 to 6 is against Travancore Christian Succession Act in respect of succession which opened prior to

01.04.1951?

3. When the matters came up for hearing today, after making the submissions, by referring to the Indian Succession Act, 1925 as well as the Travancore Christian Succession Act, both the learned counsel appearing for the appellants as well as the respondents narrow down the issues and the learned counsel for the appellants submitted as follows:

(1) Admittedly, suit item-2 (except 7 cents in survey No.593A belongs to Arulappan), Item-6, 7, 8 and 10, one half (½) of item 12, 13 and 14 of “A” Schedule belong to plaintiff's father Yestak Nadar. Therefore, the plaintiff is entitled to 1/6 share in the said properties as correctly held by the courts below. There is no dispute in this regard in the present second appeal.

(2) The “B” schedule properties admittedly belong to plaintiff's mother Sebestiyaye. Therefore, the plaintiff is entitled to 1/6 share in “B” schedule properties as correctly held by the court's below. The appellant is satisfied with the decree of the courts below in respect of “B” schedule property.

(3) The item-1, 7 cents (Survey No.593A) in Item-2 ½ share in item-3, item-4, 5 and 9 “A” schedule belong to their grandfather “Arulappan Nadar”. Arulappan Nadar admittedly died in 1941. On the date of his death, Travancore Christian Succession Act (regulation No.II (1092.M.E.) was in force. According to Travancore Christian Succession Act, Widow or mother shall have only life interest and daughter shall not be entitled to succeed to the properties of deceased. Therefore, Arulappan's daughter Prakasi, Varuvel and Cruzantony did not have any right over his properties. Arulappan's wife Mariantony also died on 10.08.1961. Therefore, the entire properties of plaintiff's grandfather “Arulappan” devolved upon his only son the plaintiff's father Yestak Nadar and the plaintiff and the defendants 2 to 5 are equally entitled to 1/6 share in all the suit “A” schedule properties. The first appellate Court has failed to decide the case applying the provisions of Travancore Christian Succession Act relating to properties of plaintiff's grandfather Arulappan.

(4) The plaintiff's grandfather Arulappan's daughter Pragasi, Varuvel and Cruzantony had not claimed any right over his properties. During the pendency of the suit, the 2nd defendant with a view to reduce the plaintiff's share, has obtained release deeds under Ex.B8 and B9 as if they are also having share in the plaintiff's grandfather Arulappan's properties. When, they can't have no share as per the provisions of Travancore Christian Succession Act which was in force on the date of death of Arulappan Nadar. Therefore, the release deed obtained by the 2nd defendant from the daughter of Arulappn is void document and hence 2nd defendant can't claim more than 1/6 share on account of this release deed.

(5) The plaintiff's grandfather Arulappan had ½ share in item-3 of “A” schedule. He died in 1941. His entire properties devolved upon his only son Yesthak Nadar under Travancore Christian Succession Act. The courts below ought to have granted 1/6 share in one half (½) of 3rd item of “A” schedule in favour

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