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2013 DIGILAW 2037 (MAD)

K. K. Karthikeyan v. C. R. Deivasigamony Chetty

2013-06-17

M.JAICHANDREN, M.M.SUNDRESH

body2013
JUDGMENT M.M. Sundresh, J. 1. The unsuccessful plaintiffs, who have filed a suit in C.S.No.523 of 1983 for declaration and the consequential relief of possession, have preferred this Original Side Appeal. 2. Facts in brief: 2.1 The appellants are the legal heirs of late Kalavai A.Kandasamy Chetty. A suit was filed in C.S.No.119 of 1969 for framing a scheme and other reliefs in respect of a Trust created by late Kalavai Narayanasamy Chetty. The said late Kalavai Narayanasamy Chetty executed a Will bequeathing certain properties for charitable purpose. In the said suit filed in C.S.No.119 of 1969, the deceased late Kalavai A.Kandasamy Chetty was arrayed as the first defendant. Even though vakalath was entered on his behalf, no written statement was filed. Accordingly, he was set ex-parte. By judgment and decree, dated 21.01.1972, a Scheme decree was passed in respect of some of the suit properties. Thereafter, the appellants, who are the legal heirs of late Kalavai A.Kandasamy Chetty, have come forward with the present suit in C.S.No.523 of 1983. The suit was filed on 16.03.1977 and consequentially, numbered in the year 1983 as the appellants filed an Application to declare them as in forma pauperis. 2.2. In the said suit, the appellants have contended that late Kalavai A.Kandasamy Chetty was insane during the pendency of the earlier suit. There is no limitation in filing the subsequent suit as it would start from the date of the knowledge and the unprobated will ought not to have been the basis for framing the scheme. Some of the properties were wrongly included in the earlier decree. However, considering the materials available on record and after proper analysis, the learned single Judge was pleased to reject the suit by dismissing it. Challenging the judgment and decree passed by the learned single Judge, this Original Side Appeal has been filed. 3. Before the learned single Judge, the following issues were framed: (i) Whether the plaintiffs are entitled to a declaration declaring that the decree of this Court passed in C.S.No.119 of 1969 is a nullity and is of no force and effect? (ii) Whether the defendants are liable to deliver to the plaintiffs possession of the properties mentioned in Schedule 'A' to the plaint? (iii) Whether the plaintiffs are entitled to mesne profits as prayed for? (ii) Whether the defendants are liable to deliver to the plaintiffs possession of the properties mentioned in Schedule 'A' to the plaint? (iii) Whether the plaintiffs are entitled to mesne profits as prayed for? (iv) Whether the judgment and decree in C.S.No.119 of 1969 has reached a finality inasmuch as late Kalavai (v) Whether the decree in C.S.No.119 of 1969 passed on the basis of the Schedule 'A' and 'A-1' properties made in the alleged Will dated 29.09.1898 is valid and enforceable? (vi) Whether the alleged Will dated 29.09.1898 is a genuine document executed by late Kalavai Narayanaswamy Chetty? Kandasamy Chetty was alive on the date of the above decree viz., 21.01.1972 and he did not file an appeal against the same? (vii) Whether the decree in C.S.No.119 of 1969 passed after late Kalavai Kandasamy Chetty the first defendant in the said suit is either binding on him or the plaintiffs who are his legal representatives? (viii) Whether the plaintiffs 2 and 3 herein are entitled to recover possession from defendants 1 to 3 of the Trust properties in Schedule 'A-1' as per the terms of the Trust deed dated 12.05.1888 and as per the judgment and decree in O.S.A.No.51 of 1954? (ix) Whether the suit is bad for mis-joinder or non-joinder of parties? (x) Whether the plaintiffs have removed the inscribed stones signifying the Door No.16, Anna Pillai Street, Madras-1 property as belonging to the Charities, prior to institution of this Suit? (xi) Whether the suit filed against the 2nd defendant in his personal capacity is maintainable in law? (xii) Whether proper and correct court fee has been paid towards the relief for possession and mesne profits? (xiii) Whether the suit is barred by res-judicata and whether there is a promissory estoppal and estoppal by representation disabling the plaintiff to take the plea of nullity of the decree in C.S.No.119 of 1969? (xiv) Whether the 2nd plaintiff who is the present Managing Trustee is justified in making adverse claim against the Trust claiming the trust properties as his own? (xv) Whether the suit property namely Items 1 and 2 of Schedule-A is a trust property or ancestral property of the plaintiffs? (xvi) To what other reliefs the parties are entitled? (xvii) Additional Issue framed today(05.03.2008): Whether the suit is barred by limitation? 4. (xv) Whether the suit property namely Items 1 and 2 of Schedule-A is a trust property or ancestral property of the plaintiffs? (xvi) To what other reliefs the parties are entitled? (xvii) Additional Issue framed today(05.03.2008): Whether the suit is barred by limitation? 4. The learned counsel appearing for the appellants contends that inasmuch as late Kalavai A.Kandasamy Chetty was insane, the decree passed is a nullity. The Will has not been probated and some of the properties are not covered by the Will. The learned counsel has also submitted that the learned single Judge has committed an error in dismissing the suit on the ground of limitation which started only on the date of the knowledge and therefore, the appeal will have to be allowed. 5. Per contra, the learned counsel appearing for the contesting second respondent would submit that the suit is hopelessly barred by limitation. The earlier suit was decreed on merits. The late Kalavai A.Kandasamy Chetty was set set-exparte. The suit filed is an after thought. The scheme decree has been given effect to. Therefore, no interference is required and the appeal will have to be dismissed. 6. DISCUSSIONS:- 6.1 The learned single judge has clearly held that there is absolutely no material to hold that the deceased Kalavai A.Kandasamy Chetty was insane at any point of time. He has never challenged the decree passed. The decree was passed on 21.01.1972 in C.S.No.119 of 1969. However, he died on 25.05.1976. As rightly observed by the learned single Judge absolutely there is no medical evidence to substantiate the case of the appellants regarding insanity. The factum of insanity was also denied by RW1. Therefore, we are of the considered view that, in the absence of any concrete evidence, the contention of the appellants that the deceased Kalavai A.Kandasamy Chetty was insane during the earlier proceedings, cannot be countenanced. Further more, it is seen that the said deceased person filed his vakalath and appeared through counsel and thereafter was set ex-parte. 6.2. It is an admitted fact that the deceased Kalavai A.Kandasamy Chetty, who was the first defendant in C.S.No.119 of 1969, died on 25.05.1976. Therefore, even during his life time, the period of limitation under Section 59 of the Limitation Act got expired. 6.2. It is an admitted fact that the deceased Kalavai A.Kandasamy Chetty, who was the first defendant in C.S.No.119 of 1969, died on 25.05.1976. Therefore, even during his life time, the period of limitation under Section 59 of the Limitation Act got expired. In view of the above said factual position, we have no hesitation in holding that the suit filed by the appellants is barred by limitation as rightly held by the learned single Judge. 6.3. It is settled law that a party, who alleges nullity of the judicial proceedings, will have to substantiate the same with clinching evidence. The facts of the case would clearly reveal that the appellants have failed in their efforts to prove the allegation of nullity. Therefore, in view of the same, we do not find any merit in the appeal. Accordingly, the Original Side Appeal is dismissed. However, in the circumstances of the case, there is no order as to costs.