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2013 DIGILAW 1099 (MAD)

Pullaiah Gounder v. Anandhayammal

2013-02-25

G.RAJASURIA

body2013
JUDGMENT 1. This second appeal is focused by the first defendant, inveighing the judgement and decree dated 19.1.2006 passed by the learned Additional Subordinate Judge, Salem, confirming the judgement and decree dated 14.3.2005 passed by the learned Principal District Munsif, Salem, in O.S.No.1147 of 2004, which is one for partition. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. A summation and summarisation of the germane facts, absolutely necessary for the disposal of this second appeal would run thus: (i) Respondents 1 to 5 herein, as plaintiffs, filed the suit for partition broadly in respect of two sets of suit properties, setting out the following prayer: - to divide the suit properties into 9 equal shares by metes and bounds and allot 5 such share to the plaintiffs by passing preliminary decree. - to appoint an advocate commissioner to divide the suit properties by metes and bounds and to allot the shares of the plaintiffs as per the preliminary decree; - to award the costs of the suit. (extracted as such) mainly on the ground that originally the first set of the suit properties belonged to Ellappan @ Irulappan-the father of the plaintiffs and the defendants; Ellappan @ Irulappan purchased the second set of the suit properties in the name of his sons-D1-Pullaiah Gounder, D2-Anai Gounder and D4-Idumba Gounder. After the death of Ellappan @ Irulappan during the year 1994, the plaintiffs sought for partition, and it was not accede to by the brothers of the plaintiffs. Hence, the suit. (ii) The defendants resisted the suit on the main ground that the second set of the suit properties were purchased by them and it was not as though their father-Ellappan @ Irulappan purchased those properties out of his income in the name of the defendants. (iii) Whereupon issues were framed. Up went the trial, during which, the first plaintiff examined herself as P.W.1 along with P.W.2 and Exs.A1 to A12 were marked. On the defendants' side the first defendant was examined as D.W.1 along with D.W.2-Idumban and D.W.3-K.Gurunathan and Exs.B1 to B18 were marked. (iii) Whereupon issues were framed. Up went the trial, during which, the first plaintiff examined herself as P.W.1 along with P.W.2 and Exs.A1 to A12 were marked. On the defendants' side the first defendant was examined as D.W.1 along with D.W.2-Idumban and D.W.3-K.Gurunathan and Exs.B1 to B18 were marked. (iv) Ultimately, the trial Court decreed the suit in respect of all the items of suit properties, as against which, the defendants preferred the appeal; whereupon the first appellate Court partly allowed the appeal by dismissing the original suit in respect of the second set of the suit properties, but partition ordered by the trial Court in respect of first set of the suit properties was confirmed. 4. Challenging and impugning the said judgement and decree of the first appellate Court, this second appeal has been filed on various grounds and also raising the following substantial questions of law: "a) Whether the plea of oral partition could be rejected for the only reason that no independence witness was examined especially when other evidence proved it.? b) Whether the courts below are right in holding that the appellants failed to establish that the sale proceeds were given to the respondents especially when the respondents did not specifically deny the same?" 5. The learned counsel for the appellant/D1 would pyramid his arguments, which could succinctly and precisely be set out thus: (i) P.W.1 herself, during cross-examination, admitted that there was oral partition, in that some of the properties in the first set of the suit properties, were allotted in favour of the plaintiffs and in view of such admission, the plaintiffs are having no right to seek for partition. (ii) The suit also was barred by limitation and that was not considered by both the Courts below. Accordingly the learned counsel for the appellant/D1 would pray for setting aside the judgements and decrees of both the Courts below. 6. The learned counsel for the respondents/plaintiffs would pyramid his arguments, which could tersely and briefly be set out thus: (i) Notwithstanding the fact that the first appellate Court dismissed the original suit in respect of the second set of the suit properties, the plaintiffs simply tolerated it; However, the defendant No.1, unjustifiably filed this second appeal so as to prevent the plaintiffs from getting their due aliquot shares in the first set of the suit properties. Accordingly, the learned counsel would pray for dismissal of the second appeal. 7. At the outset itself, I would like to fumigate my mind with the following recent decision of the Hon'ble Apex Court reported in 2012(8) SCC 148 [Union of India v. Ibrahim Uddin and another]; an excerpt from it would run thus: "59. Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a second appeal does not lie on question of facts or of law. In SBI v. S.N.Goyal (2008) 8 SCC 92 , this Court explained the terms "substantial question of law" and observed as under: (SCC p.103, para 13) "13......The word "substantial" prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties ......any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law......There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case." (emphasis added) 8. In the same precedent, the following decisions are found referred to: (1) AIR 1962 SC 3314 [Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mgf. Co. Ltd.] (2) (2011) 1 SCC 673 [Vijay Kumar Talwar v. CIT] (3) AIR 1947 PC 19 [Bibhabati Devi v. Kumar Ramendra Narayan Roy] (4) (1949) 17 ITR 269 (Nag) [Suwalal Chhogalal v. CIT] (5) AIR 1957 SC 852 [Oriental Investment Co. and Mgf. Co. Ltd.] (2) (2011) 1 SCC 673 [Vijay Kumar Talwar v. CIT] (3) AIR 1947 PC 19 [Bibhabati Devi v. Kumar Ramendra Narayan Roy] (4) (1949) 17 ITR 269 (Nag) [Suwalal Chhogalal v. CIT] (5) AIR 1957 SC 852 [Oriental Investment Co. Ltd. v. CIT] (6) AIR 192 SC 1604 [Jagdish Singh v. Natthu Singh] (7) (1996) 5 SCC 353 [Parativa Devi v. T.V. Krishnan] (8) (1998) 6 SCC 423 [Satya Gupta v. Brijesh Kumar] (9) AIR 2000 SC 534 [Ragavendra Kumar v. Firm Prem Machinery & Co.] (10) AIR 2000 SC 1261 [Molar Mal v. Kay Iron Works (P) Ltd.] (11) (2010) 11 SCC 483 [Bharatha Matha v. R.Vijaya Renganathan] (12) (2010) 12 SCC 740 [Dinesh Kumar v. Yusuf Ali] (13) (2002) 3 SCC 634 [Jai Singh v. Shakuntala] (14) (2008) 12 SCC 796 [Kashmir Singh v. Harnam Singh] 9. A mere running of the eye over those precedents would clearly and unambiguously exemplify and demonstrate that unless there is any substantial question of law is involved, the question of entertaining the second appeal would be a well neigh impossibility. 10. Accordingly if viewed it is indubitably and indisputably clear that Ellappan @ Irulappan happened to be the original owner of the first set of the suit properties described in the plaint. In order to disambiguate the ambiguity, if any, I would like to point out that in the plaint, the first set of the suit properties comprised of the following 10 items of properties, and the same are extracted hereunder for ready reference: Item I.1 Salem District, Salem Taluk, Thirumalaigiri Village, S.No.70/12B Extent 0.05.0 Kist 0.06 S.No.70/12D Extent 0.02.5 Kist 0.06 S.No.70/4 Extent 0.13.5 Kist 0.19 Value Rs.25,000 Item I.2 Salathampatti Village. S.No.31/2B3 Extent 0.02.0 Kist 0.11 S.No.34/1C Extent 0.01.0 Kist 0.08 S.No.34/3B1 Extent 0.06.5 Kist 0.49 S.No.34/3B6 Extent 0.13.0 Kist 0.98 Value Rs.25,000/- Item I.3 VEDUGUTHAMPATTI VILLAGE S.No.9/9 Extent 0.09.5 Kist 0.75 S.No.9/11 Extent 0.02.5 Kist 0.19 S.No.9/16C Extent 0.09.0 Kist 0.70 Value Rs.25,000/- 11. In respect of the above first set of the suit properties, Ellappan @ Irulappan happened to be the original owner and the relationship among the parties is an admitted one. In respect of the above first set of the suit properties, Ellappan @ Irulappan happened to be the original owner and the relationship among the parties is an admitted one. Since Ellappan @ Irulappan died only during the year 1994, after the advent of the Hindu Succession Act, 1956, the six daughters of Ellappan @ Irulappan, namely, plaintiffs 1 to 5 and D3 and three sons, namely, D1, D2 and D4 are all Class-I heirs as per the Hindu Succession Act, 1956, and they are all entitled to equal shares. Simply because the defendants 1 and 2 pleaded as though after the death of Ellappan @ Irulappan, some items were allowed to be enjoyed by the plaintiffs that it does not mean that an oral partition as alleged by the defendants should be presumed. 12. In fact, the evidence on record would also indicate and exemplify that a Power of Attorney was executed by the sons of deceased Ellappan @ Irulappan in favour of daughters of Ellappan @ Irulappan in respect of certain items of the suit properties, but that would not in any way support the theory of oral partition. If at all any oral partition emerged, there is no knowing of the fact as to how the execution of the power of attorney by some of the legal heirs in favour of some other legal heirs would arise. Wherefore, it is clear that the very theory as put forth and set forth by the defendants is too big a pill to swallow and both the Courts below appropriately and appositely, correctly and convincingly and that too, legally rejected it and ordered partition in respect of the first set of the suit properties. Wherefore, I could see no illegality or infirmity in the order passed by both the Courts below. There is no question of law much less substantial question of law also involved in this second appeal. 13. In the result, the second appeal is dismissed. No costs. Consequently, connected miscellaneous petition is dismissed.