JUDGMENT :- 1. This Second Appeal is focussed animadverting upon the judgment and decree dated 13.06.2012 passed in A.S.No.116 of 2009 by the learned First Additional District Court, Coimbatore partly in allowing the judgment and decree passed in O.S.No.1941 of 1997 dated 20.12.2002 by the learned Second Additional District Munsif, Coimbatore. 2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 3. Broadly but briefly, narratively but precisely, the germane facts absolutely necessary for the disposal of this Second Appeal, would run thus: The plaintiffs, being the daughters of D1 and sisters of D2 filed the suit seeking partition of the immovable properties found described in the schedule of the plaint. 4. Tersely and briefly the case of the plaintiffs as stood exposited in the plaint would run thus: The suit properties happened to be the ancestral properties in the hands of D1. While so, D2 and the plaintiffs 1 and 2, happened to be the children of D1, are entitled to equal shares along with D1, as the plaintiffs remained unmarried as on the date of commencement of the Tamil Nadu Hindu Succession (Amendment Act) 2005 [Act 1 of 1990] which came into force with effect from 25th March 1989. Accordingly, they prayed for allotment of 1/4th share in their favour. 5. Per contra D2 challenging and impugning the averments/allegations in the plaint, filed the written statement which could succinctly and precisely be set out thus: There emerged an oral family arrangement between D1 and D2 on 03.09.1988 in respect of the ancestral properties described in the schedule of the plaint, whereby the suit properties were allotted to D2 and accordingly, he became the absolute owner of the suit properties and that he is in possession and enjoyment of the same. Accordingly, he prayed for the dismissal of the suit. However, D1 filed the written statement supporting the case of the plaintiffs. 6. The trial court framed the relevant issues. 7. Up went the trial during which the first plaintiff/Prema examined herself as P.W.1 and Exs.A1 to A8 were marked; and the defendants 1 and 2 examined themselves as D.W s.1 and 2 and Exs.B1 to B51 were marked. 8.
However, D1 filed the written statement supporting the case of the plaintiffs. 6. The trial court framed the relevant issues. 7. Up went the trial during which the first plaintiff/Prema examined herself as P.W.1 and Exs.A1 to A8 were marked; and the defendants 1 and 2 examined themselves as D.W s.1 and 2 and Exs.B1 to B51 were marked. 8. Ultimately the trial court decreed the suit as prayed for, as against which D2 preferred the appeal, whereupon the appellate Court confirmed the judgment and decree of the trial Court, however, modified the decree by dismissing the suit as against the first plaintiff, but by decreeing the suit in favour of second plaintiff, on the ground that the first plaintiff and D2 entered into a compromise. 9. Challenging and impugning the judgment and decree of the first appellate Court, the second defendant preferred this second appeal on various grounds and also suggesting the following substantial questions of law: "(a) Whether the courts below erred in law in rejecting the deed of family arrangement dated 09.09.1988 (Ex.B51) on the ground that it is not duly stamped even though it has not been dealt with under Section 35 of the Stamp Act before it was admitted in evidence, therefore, by virtue of Section 36 of the Stamp Act, it cannot be questioned at any later stage? (b) Whether the courts below erred in disbelieving the Deed of family arrangement dated 09.09.1988 (Ex.B51) on the ground that it is also not registered but, it can be admitted in evidence for collateral purpose under proviso to Section 49 of the Registration Act? (c) Whether the Courts below have committed an error in decreeing the suit for partition even though the property has been divided much prior to the Tamil Nadu Act 1 of 1990 under Ex.B51 whereupon the plaintiffs are not entitled to claim any share in the properties? (extracted as such) 10. The learned counsel for the appellant/D2 would pyramid his argument, which could tersely and briefly be set out thus: Both the Courts below failed to appreciate the genuineness of Ex.B51 dated 09.09.1988 which emerged between D1 and D2, who happened to be the only two co-parceners relating to the suit properties are concerned.
(extracted as such) 10. The learned counsel for the appellant/D2 would pyramid his argument, which could tersely and briefly be set out thus: Both the Courts below failed to appreciate the genuineness of Ex.B51 dated 09.09.1988 which emerged between D1 and D2, who happened to be the only two co-parceners relating to the suit properties are concerned. As on the date of emergence of Ex.B51, the two ladies as per the Hindu law obtaining at that time even by phantasmagorical thoughts or by any stretch of imagination, could be treated as co-parceners. As such, before the commencement of the Act 1 of 1990 with effect from 25.03.1989 itself, the partition was effected between the two co-parceners namely D1 and D2, whereby the daughters of D1 could not claim any right over the suit properties. But both the Courts below failed to appreciate the law points appositely in deciding the lis. Ex.B51 could have been relied on by the Courts below by virtue of the proviso appended to Section 49 of the Registration Act. 11. I would like to fumigate my mind with the following 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.
'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) 12. Keeping the dictum as found enunciated in the aforesaid judgment, I would like to analyse the records available to see as to whether there is any substantial question of law is involved. It is not the case of either D1 or D2 that the property happened to be the self acquired property of D1. W herefore it is clear that the suit properties happened to be ancestral properties in the hands of D1. D1 virtually filed the written statement submitting to decree and in his written statement there was no whisper about Ex.B51. Had really Ex.B51 emerged anterior to the commencement of the Act 1 of 1990, then certainly in the written statement of D1 it would have got referred to. Over and above that during cross examination of D.W.1(D1), he would state that he barely signed two blank papers and that Ex.B51 was a fabricated document. In fact, both the fora below threadbare analysed Ex.B51 with reference to the deposition of D.W s.2 and 3 and held that it was nothing but a concocted document emerged purely for the purpose of depriving those two daughters of D2, of their aliquot shares in the suit properties. In fact, Ex.B51 would read as though D1 gave the property in entirety in favour of D2, but D1 himself would not plead so in his written statement. 13. As against the concurrent finding of fact, no interference in the Second Appeal is warranted unless there is any perversity or illegality in it. While hearing the argument of the learned counsel for the appellant, I could not come across any illegality or perversity highlighted in the judgments of both the fora below.
13. As against the concurrent finding of fact, no interference in the Second Appeal is warranted unless there is any perversity or illegality in it. While hearing the argument of the learned counsel for the appellant, I could not come across any illegality or perversity highlighted in the judgments of both the fora below. There is also nothing to exemplify and demonstrate that the alleged emergence of Ex.B51 – the patta in respect of the suit property, got exclusively changed in his name. In fact, the trial Court adverted to the said fact and commented upon the very plea taken by D2. Wherefore as against such concurrent finding of fact, no interference by this Court is warranted. 14. Over and above that I would like to observe that in view of the decisions of the Hon'ble Apex Court reported in (2009) 2 SCC 532 [Avinash Kumar Chauhan v. Vijay Krishna Mishra] and 2011-5-L.W.612 [Ganduri Koteshwaramma and another v. Chakiri Yanadi and another], the plaintiffs are entitled to their aliquot shares, so to say 1/4th share each in their favour in the suit properties. It appears the first appellate Court dismissed the claim of the first plaintiff on the ground that there was some compromise emerged between the first plaintiff and D2 and it appears the first plaintiff did not choose to prefer any appeal and so I am of the view that no interference with the judgment and decree of the first appellate Court is warranted. Accordingly, this Second Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.