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2000 DIGILAW 792 (MAD)

Ariyaputhiran & Others v. Munusami & Others

2000-08-09

M.KARPAGAVINAYAGAM

body2000
Judgment : 1. The appellants are the defendants. Having lost in both the courts below, this second appeal has been filed before this Court. 2. Theplaintiff/respondents filed the suit in O.S.No.17 of 1986 before the Additional District Munsif, Kaliakurichi, for partition and separate possession of their half share in the suit properties. According to the plaintiffs, the properties belonged to one Angamuthu, husband of the first plaintiff and father of the plaintiffs 2 to 6 and the defendants are the second wife and children of Angamuthu, who died intestate and therefore, the plaintiffs are entitled to half share in the properties. 3. Thedefendants/appellants contested the said suit stating that even during the life time of Angamuthu, he made an oral partition and gave the suit properties to the defendants and since then, the defendants have been enjoying the suit properties in their own right and since the plaintiffs had already been given tiled house by the said Angamuthu, the plaintiffs cannot claim any partition over the suit properties. 4. The trial court after considering the evidence, oral and documentary, passed a preliminary decree holding that the plaintiffs would be entitled to half share in the suit properties. Aggrieved by that, the appellants filed and appeal in A.S.No.27 of 1996 before the Sub Court, Kallakurichi, which in turn confirmed the judgment and decree of the trial court and dismissed the appeal, Aggrieved by this, the appellants have come forward with this second appeal. 5. Mr.R.Subramanian, appearing for the appellants/defendants would contend raising a substantial question of law, that the lower appellate court has not passed a speaking order and it has also committed illegality in not even framing points for determination as contemplated under O.41, Rule 31, C.P.C. 6. Per contra, Mr.P.Valliappan, appearing for the respondents would make a reply stating that though the judgment of the lower appellate court is short, the important aspects of the relevant materials have been discussed by the lower appellate court and the trial court considered all the relevant issues in detail and held that the plaintiffs would be entitled to half share in the suit properties and therefore, the judgments and decrees passed by the courts below may not be disturbed. 7. 7. Theonly point that arises for consideration in this second appeal is as to whether the lower appellate court could render judgment without giving proper reasoning for the conclusion and even without framing the point for determination. 8. Inthe instant case, it is true that the point for determination had not been framed by the lower appellate court. However, in the earlier paragraphs, the lower appellate court would refer to the various issues framed by the trial court. The reading of the judgment of the lower appellate court would clearly reveal that the main argument that was advanced by the counsel for the appellants was that on the basis of the release deed stated to have been executed by the plaintiffs in favour of the defendants in respect of the suit properties, the plaintiffs would not be entitled to any share. 9. As a matter of fact, it was argued by the counsel for the appellants that the release deed dated 7. 1985 executed by the plaintiffs in favour of the defendants was not available at the time of trial and therefore, the appellants must be permitted to produce the said document before the lower appellate court in order to consider the main issue whether the plaintiffs would be entitled to any share. Therefore, the lower appellate court would concentrate more on that and held that since the release deed dated 7. 1985 was not filed before the lower appellate court, the defendants would not be entitled to raise the point that already the plaintiffs have released their right in favour of the defendants. On the other hand, the lower appellate court would clearly observe that the plaintiffs, namely, the first wife and children of Angamuthu would be entitled to the share in the absence of any document executed by the said Angamuthu during his life time in favour of the defendants. 10. That apart, when it is the case of the defendants that there was a partition of the properties by which these properties were handed over to the defendants, it is for them to prove the same. On the other hand, the kist receipts show that till 1985 the kist was paid by the said Angamuthu in his name. Immediately after his death, the plaintiff filed the suit for partition. 11. On the other hand, the kist receipts show that till 1985 the kist was paid by the said Angamuthu in his name. Immediately after his death, the plaintiff filed the suit for partition. 11. Under those circumstances, mere non-framing of the point for determination by the lower appellate court, in the absence of any prejudice, would not invalidate the judgment of the lower appellate court, particularly when the relevant materials have been discussed for arriving at the conclusion that the judgment and decree passed by the trial court are correct and the plaintiffs would be entitled to half share in the suit properties. 12. Inthis context, the observation of the Hon’ble Srinivasan, J. (as he then was) made in the judgment in Sivaprakasam Mudaliar v. Selvaraj Padayachi , (1992)1 L.W. 22 is quite relevant, which is as follows: “Learned counsel for the appellant contends that under O.41, Rule 31, C.P.C., it is the duty of the court to frame the points for consideration and to give findings thereon with reason to support these findings. I am of the view that in the present case the judgment is not vitiated for want of framing of such a point. Though a point has not been framed by the appellate Judge, he considered the entire evidence on record and discussed the same in detail and ultimately came to the conclusion. His findings are supported by his reasons. Hence there is substantial compliance with the provisions of O.41, Rule 31, C.P.C., and judgment is not in any manner vitiated by the absence of a point.” The above observation, in my view, would apply in all fours to this case also, especially when the relevant materials have been analysed by both the courts below. 13. The other contention put forward by the learned counsel for the appellants is that the judgment of the lower appellate is too brief and did not satisfy the requirements of a ‘judgment’ enumerated in O.41, Rule 31, C.P.C. 14. No doubt, it is true that the judgment of the lower appellate court is not a detailed judgment. But, it shall be noticed that in a confirming judgment unlike in a judgment which reverses, it is not necessary to go into every fact and every piece of evidence at length and adduce all the reasons for the conclusion. 15. No doubt, it is true that the judgment of the lower appellate court is not a detailed judgment. But, it shall be noticed that in a confirming judgment unlike in a judgment which reverses, it is not necessary to go into every fact and every piece of evidence at length and adduce all the reasons for the conclusion. 15. It is settled law that is not necessary for the lower appellate court to go into any equally detailed discussion when it agrees with the findings of fact of the trial court. 16. In this context, it would be relevant to refer to the judgment of the Apex Court in Girijanandhi v. Bijendra Narain, A.I.R. 1967 S.C. 124 in which it is held as follows: “It is not the duty of the appellate court when it agrees with the view of the trial court on the evidence either to restate the effect of the evidence of to reiterate the reasons given by the trial court, Expression of general agreement with reasons given by the court decision of which is under appeal would ordinarily suffice.” 17. In the light of what is stated above, this contention also would fail. 18. Furthermore, as indicate above, there is no reason as to why the defendants/appellants had not produced the release deed dated 7. 1985, which is a main document on the basis of which the arguments were advance before the lower appellate court. Therefore, I do not find any serious illegality in the findings ultimately arrived at by the trial court and the lower appellate court and consequently, the same is dismissed. No Costs. C.M.P. No.10884 of 1998 is also dismissed.