Muthu @ Muthammal vs C. Nagarajan and Others

G. Rajasuria, J.—This second appeal is focussed by the plaintiff, inveighing the judgement and decree dated 19.11.2010 passed by the

learned Principal Subordinate Judge, Erode in A.S. No. 79 of 2010 in confirming the judgment and decree dated 30.06.2010 passed by the

learned II Additional District Munsif, Erode in O.S. No. 62 of 2008. The parties, for the sake of convenience, are referred to here under

according to their litigative status and ranking before the trial Court.

The epitome and the long and the short of the germane facts absolutely necessary for the disposal of this second appeal would run thus:

a] The gist and kernel of the averments in the plaint would run thus: The suit property originally belonged to one Periyanaicker, who died 50 years

anterior to the filing of the suit. His widow was Chinnammal, who died 5 years before the filing of the suit. The couple Periyanaicker and

Chinnammal had three children, viz., Kanniammal, Ramayee and Muthu @ Muthammal, the plaintiff. The said Kanniammal died 10 years anterior

to the filing of the suit leaving behind her husband, Chinnathambi Naicker, (who also died before the filing of the suit) and her son D1-Nagaraj.

Ramayee died 15 years before the filing of the suit leaving behind her husband Nataraj, who died 10 years ago and the couple Ramayee and

Nataraj gave birth to Amaravathi (D2), Sundarambal (D3), Madheswaran (D4), Vasudevan (D5) and Annapoorani (D6). Since Chinnammal died,

the entire suit property, which belonged to the deceased Periyanaicker should be divided into three equal shares among his aforesaid three children

and one such 1/3 share should be allotted to the share of the plaintiff.

b] D1, D4 and D5 remained exparte before the trial court.

c] Per contra, D2 filed the written statement, which was adopted by D3 and D6 putting forth and setting forth various averments, which could

succinctly and precisely be set out thus:

The said Chinnammal during her life time executed concerning her through her daughter Ramayee. Accordingly, D2, D3 and D6 were entitled to the remaining > share at the rate of share devolved upon D2 to D6 equally.

Accordingly, they prayed for the dismissal of the suit.

d] Issues were set down for trial by the trial court, during which, the plaintiff examined herself as PW1 and marked Exs.A1 to A7. On the side of

the defendants, D.Ws.1 to 4 were examined and Exs.B1 to B6 were marked.

e] Ultimately, the trial court decreed the suit mandating for division of the entire suit property into 20 shares and allotted 5/20 shares in favour of

the plaintiff and 8/20 shares in favour of D2, D3 and D6 and presumably the remaining 2/5 share was allotted in favour of D4 and D5 and the

remaining 1/3 share in favour of D1.

f) Challenging and impugning the judgment and the preliminary decree of the trial court, the appeal was filed by the plaintiff for nothing but to be

dismissed by the first appellate court confirming the judgment and the preliminary decree passed by the trial court.

g) Being aggrieved by and dissatisfied with the judgments and decrees of both the fora below, this second appeal has been focussed by the plaintiff

on various grounds and also suggesting the following substantial questions of law:

(i) To the facts and circumstance of the case, whether courts below was right in granting the prayer as prayed in the suit, when the defendants have

not proved the settlement deed Ex.B1, when the appellant have specifically denied that the existence of the settlement deed?

(b) Whether the courts below was right in not granting the relief as prayed by the appellant, when the settlement deed was not an issue tried in the

earlier suit, since the main relief in the earlier suit is not against the respondents herein? (extracted as such)

Heard both sides.

At the outset itself, I would like to fumigate my mind with the recent decision of the Hon''ble Apex Court reported in Union of India (UOI) Vs.

Ibrahim Uddin and Another, .

A mere running of the eye over the aforesaid decision would connote and denote, exemplify and demonstrate that the second appeal cannot be

entertained as a matter of course unless any substantial question of law is involved.

The learned counsel for the appellant/plaintiff would reiterate the stand taken in the plaint and sought for interference as according to him, both

the fora below failed to take into account that the settlement executed by Chinnammal was not a valid one in view of the fact that one co-parcener

cannot donate her share in favour of her grand daughters.

Whereas the learned counsel for the defendants would in a bid to torpedo and make mincemeat of the arguments as put forth and set forth on

the side of appellant/plaintiff, the learned counsel for the defendants 2, 3 and 6 would submit that both the fora below au fait with law and au

courant with facts based on the oral and documentary evidence upheld the settlement executed by Chinnammal, who was not a co-parcener as the

concept co-parcenery cannot be pressed into service in the facts and circumstances of this case and the properties happened to be the self-

acquired properties of the deceased Periyanaicker, who died after 1956.

Accordingly, he would pray for the dismissal of the second appeal.

A mere running of the eye over the judgments of both the fora below would highlight and spotlight the fact that the suit property, indubitably and

indisputably belonged to Periyanaicker, who as per the evidence available on record died after 1956. The suit was filed in the year 2008. It is

stated in the plaint that 50 years anterior to the filing of the suit Periya Naicker died, which means in all probabilities, he must have died after 1956.

In such a case, as a sequela, what follows is that consequent upon his death, his widow Chinnammal and his three children, viz., Kanniammal,

Ramayee and Muthu @ Muthammal, who happened to be the Class I heirs by virtue of Section 8 of the Hindu Succession Act, are entitled to share each. There was no embargo in law for a legal heir, who inherited the property from their propositus to alienate their undivided share in

favour of their grand daughters. This aspect has been properly considered by both the courts below. The question of pressing into service the co-

parcenery concept is a well-neigh impossibility and even by phantasmagorical thoughts, such an argument advanced on the side of the

appellant/plaintiff cannot be countenanced and upheld. Both the fora below upheld the validity of the settlement deed and as against such

concurrent finding of fact, no interference is warranted.

The learned counsel for the contesting defendants would also submit that strictly in accordance with Section 68 of the Indian Evidence Act, the

attestors of the settlement were examined as DW2 and DW4 and the due execution of the settlement deed was proved. As such, as against the

concurrent finding of fact based on reliable evidence, no fault could be found and I could see no perversity or illegality in the judgments and

decrees of both the fora below. Wherefore, the ultimate conclusion arrived at by the trial court in allotting shares to the sharers cannot be found

fault with. The first appellate court also, being the last court of fact in its reasoned judgment, confirmed the judgment and preliminary decree passed

by the trial court, warranting no interference in this second appeal. All told, in this factual matrix, this second appeal is dismissed. However, there

shall be no order as to costs.