Subba Reddiar vs Vasantha Ammal and another

The plaintiff in the suit is the appellant. The plaintiff filed a suit in O.S.No.117 of 1979 on the file of the learned Subordinate Judge, Tindivanam

for partition of half share in item nos. 1 and 2 and for recovery of possession in respect of item nos.3 to 5 of the suit properties. It was the case of

the plaintiff that item Nos. 1 and 2 of the suit properties owned by one Krishnsamy Naidu and the same were his self acquired properties.

Thiru.Krishnasamy Naidu died on 1.2.1957 intestate. After his demise his son Devaraj and daughter Ramanujam Ammal partitioned orally the item

nos.1 and 2 of the suit properties equally. From then onwards both Devaraj and Ramanujam Ammal were in possession and enjoyment of their

respective shares without any interruption. On 14.10.1971, Ramunjam Ammal sold her share of the plaintiff for a sale consideration of Rs. 10,000

through a registered sale deed marked as Ex.A-1. From the date of purchase, the plaintiff is in possession and enjoyment of the properties and is

cultivating the land by planting paddy and some trees. The defendants are the owners of adjacent lands to the items 1 and 2 of the suit properties

and they have no right whatsoever in respect of the properties purchased by the plaintiff. However, the defendants frequently interfered with the

possession and enjoyment by the plaintiff in respect of the suit properties and such an attempt on 31.3.1977 by the defendants was successfully

prevented by the plaintiff. Therefore the plaintiff filed the suit for permanent injunction against the defendants in respect of item nos. 1 and 2. It is

the further case of the plaintiff that after the filing of the suit the defendants on 23.5.1977 and 16.7.1979 encroached the item nos .1 and 2 of the

suit properties and forcibly took possession of the same. Therefore the plaintiff also prayed for partition of the properties in item nos.1 and 2 and

declaration and permanent injunction in respect of the properties mentioned in item nos.3 to 5.

The defendants on the other hand resisted the suit by claiming that the claim of the plaintiff in respect of properties mentioned in item nos.1 and 2

are not self acquired properties of Thiru.Krishnasamy Naidu. They also denied that Krishnasamy Naidu died on 1.2.1957. The further case of the

defendants was that the said Ramanujam Ammal is not the daughter of Krishnasamy Naidu and Tmt. Sundaram Ammal the mother of Ramanujam

Ammal was not the legally wedded wife of Thiru Krishnasamy Naidu and she was only a concubine of Thiru Krishnasamy Naidu. It was further

claimed that even if is admitted that Ramanujam Ammal is the daughter of Krishnasamy Naidu through Sundaram Ammal, she is not a legitimate

daughter and therefore she is not entitled to any share of the properties belonging to Krishnasamy Naidu. It was further contended by the

defendants that the properties in item nos.1 and 2 were the joint family properties of Krishnasamy Naidu and his son Devaraj and there were no

separate properties for Krishnasamy Naidu. Thiru. Devaraj was the only person entitled to the rights over the joint family properties after the

demise of Krishnasamy Naidu and therefore that the alleged partition between Devaraj and Ramanujam Ammal was not true. Further Ramanujam

Ammal had no right over the suit properties since even prior to the Hindu Succession Act came into force Thiru.Krishnasamy Naidu expired.

Therefore the question, of partition did not arise. Further it was contended that after the demise of Thiru.Krishnasamy Naidu, Devaraj alone had

taken possession and in enjoyment of the properties without any interruption and the right that was claimed by Ramanujam Ammal cannot be

sustained and at no point of time Ramanujam Ammal was in possession and enjoyment of the properties and therefore by virtue of adverse

possession also Thiru.Devaraj was entitled to the properties in item nos.1 and 2. The defendants further contended that Devaraj sold item No.l of

the properties to one Kanagasabai Gounder and Govindasamy Gounder on 25.8.1958 and on 23.12.1957 by registered sale deeds and they

further contended that the plaintiff himself had been in enjoyment of the properties on the strength of the usufructuary mortgage (bokkiam) and

therefore the plaintiff was estopped from claiming title over the properties. Further it was the case of the defendants that they had no right or title

whatsoever over item nos.3 and 4 of the schedule properties. In respect of item no.5, the defendants contended that what all purchased by the

plaintiff was only of half share in the well and not to an extent of 4 cents of the land and therefore the plaintiff is not entitled to the claim in respect

of the land of 4 cents in item no.5 of the schedule, mentioned properties. Therefore the defendants had prayed for the dismissal of the suit. On the

above pleadings, the trial Court framed the following issues:

The trial Court on consideration of the evidence found additional issue no.1, ''framed on 22.4.1985'', in favour of the defendants by holding that the

item nos.1 and 2 of the schedule mentioned properties were actually joint family properties of Krishnasamy Naidu and his son Devaraj and the

same were not self acquired ''properties'' of Krishnasamy. Naidu as contended by the plaintiff. In so far as the issue no.5 framed on 18.4.1985, the

trial Court found that in the absence of any evidence with regard to the marriage between Krishnasamy Naidu and Sundaram Ammal and in.

absence of any other documents to substantiate such a marriage, Sundaram Ammal is not a ''legally wedded wife of Krishnasamy Naidu and

Ramanujam Ammal is not the legitimate daughter of Krishnasamy Naidu. In respect of the question of application of Hindu Succession Act to the

present case, on evidence the trial Court came to the conclusion that Krishnasamy Naidu expired only after the Hindu Succession Act came into

force. On the above findings the trial Court further went on to the question as to whether Ramanujam Ammal is entitled to any right whatsoever

over the properties mentioned in item nos.1 and 2. On facts, the trial Court found that after the demise of Krishnasamy Naidu in the year 1957,

Ramanujam Ammal was neither in possession nor in enjoyment of item nos.1 and 2 of the schedule properties and further found that Devaraj had

been in continuous possession of the properties in item nos.1 and 2 and therefore was entitled to those properties by adverse possession also. In

that view the trial Court held that Ramanujam Ammal did not obtain the properties through partition and consequently had no right over the

properties and accordingly the trial Court found that the properties in item nos.1 and 2 of the schedule mentioned properties in fact belonged to

DevaraJ.

In so far as the item nos. 3 and 4 of the suit properties the trial Court also refused to grant a permanent injunction on the ground that there was

no evidence to show interference on the part of the defendants over the possession of the properties. In that view of the matter the trial Court

dismissed the suit.

On appeal by the plaintiff the lower appellate Court on appreciation of evidence concurred with all the findings of the trial Court and dismissed

the appeal. It is against the above judgment and decree the present second appeal has been filed by the unsuccessful plaintiff.

When the second appeal was admitted the following substantial question of law has been framed by this Court;-

Whether the lower appellate Court was right in negativing the claim of the appellant to item nos.3 and 4 of the suit properties"".

When the second appeal was taken up for hearing, the learned counsel for the appellant submitted that in view of the specific disclaim made by the

defendants in respect of item nos.3 and 4 of the suit properties, the Courts below ought to have decreed the suit and ought to have declared the

plaintiff as the owner. It is to be noted that in the plaint the plaintiff has alleged that the defendants and their men attempted to interfere with the

plaintiff''s possession of the suit properties on 31.3.1979 with regard to item nos.3 and 4 of the suit properties. However the defendants did not

claim any interest in the written statement in respect of item nos.3 and 4 as per the amended plaint. In that view of the matter both the trial Court

and the appellate Court had come to the conclusion that in the absence of any threat by the defendants to interfere with the possession of the

plaintiff, the prayer for injunction need be granted. The learned counsel for the appellant submitted that when once the defendants disclaimed their

interest over items 3 and 4 of the suit properties, the Courts below ought to have granted the relief of declaration and injunction. I do not agree

with the said submission of the learned counsel for the simple reason that when the defendants themselves had come up before the Court

disclaiming any interest over item nos.3 and 4 of the suit properties, there was no question of granting any relief of declaration and permanent

injunction. Further the Courts need not give any relief for mere asking unless there was compelling necessity for the individual approaching the

Court to get such relief. I do not find any such necessity in the present case to grant such relief especially when the defendants, against whom the

relief asked for have disclaimed any interest over the properties in question. Further no judgment have been cited on behalf of the appellant to

press the point that inspite of the disclaim made by the defendants the suit should be decreed. In the absence of the same I have no other option

but to reject the said contention of the learned counsel for the appellant. Accordingly, the substantial question of law framed in the second appeal is

answered against the appellant.

The learned counsel for the appellant next advanced the arguments on merits in respect of other issues by contending (1) that the item nos. 1, 2

and 5 of the suit properties are the self acquired properties of Thiru.Krishnasamy Naidu, (2) that Ramanujam Ammal is the legitimate daughter of

Krishnasamy Naidu, (3) that Thiru.Krishnasamy Naidu expired after the Hindu Succession Act had come into force and (4) that Ramanujam

Ammal is entitled to inherit the properties of the father by succession as the item nos. 1 and 2 of the suit properties are the self acquired properties

of the father of Ramanujam Ammal namely Krishnasamy Naidu. When these arguments were sought to be advanced it was pointed out by this

Court that, this Court can go only into the substantial question of law which has been framed at the time of admission and cannot go into other

questions sitting in the second appeal as the power conferred on this Court u/s 100 is very limited and only to the circumstances enumerated

therein. However the learned counsel insisted for advancing arguments also on merits. In this connection it is to be pointed out that the Apex Court

in the judgment reported in Dnyanoba Bhaurao Shemade Vs. Maroti Bhaurao Marnor, while rendering a decision on this issue has observed in

paragraph 11 as follows;

It has to be kept in view that the learned single Judge was exercising jurisdiction u/s 100, C.P.C. as it was amended in 1976. A mere look at the

said provision shows that the High Court can exercise its jurisdiction u/s 100, C.P.C. only on the basis of substantial question of law which are to

be framed at the lime of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed

substantial questions of law. The impugned judgment shows that no such procedure was followed by the learned single Judge. It is held by a catena

of Judgments by this Court, some of them being, Kshitish Chandra Purkait Vs. Santosh Kumar Purkait and others, and Sheel Chand Vs. Prakash

Chand, , that the judgment rendered by the High Court u/s 100, C.P.C. without following the aforesaid procedure cannot be sustained. On this

short ground alone, this appeal is required to be allowed.

In view of the categorical pronouncement by the Apex Court, this Court cannot entertain any arguments to be advanced outside the purview of

substantial question of law framed at the time of admission of second appeal. That apart both the Courts below have concurrently held against the

plaintiff in respect of the above issues based on evidence. The learned counsel fop the appellant did not advance any arguments that the Courts

below have failed to consider material evidence on record or ignoring impossible evidence or on any other ground u/s 100, C.P.C. for this Court

could interfere. It is well settled principle that this Court cannot interfere in the concurrent findings of facts however erroneous they are. The said

principle has been laid down by the Apex Court in the judgment reported in Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, . In

that view of the matter I do not find any reason even on merits to interfere with the concurrent findings of the Courts below in respect of the above

submissions made by the learned counsel for the appellant.

The learned counsel and brought to my notice a judgment reported in Seerangammal (died) and others v. E.B. Venkatasubramanian & others,

1987 (100) L.W. 58 to press the point that Sundaram Ammal, mother of Ramanujam Ammal should be considered as legally wedded wife since

she has been living with Thiru.Krishnasamy Naidu for quite some years. In the said judgment a Division Bench of this Court while considering the

word has held that the presumption of marriage could be drawn due to long cohabitation and other evidence. That was a case where one

Ranganatha an employee of a Bus Transport Company and was having a taxi, married one Bagirathi as his first wife and through whom a son was

born. Since the first wife was inflicted with T.B., to care for her, the first plaintiff came into the house to help the members and as Ranganatha

developed a liking to her, marriage between Ranganatha and Seerangammal namely the first plaintiff took place on 1.2.1933 in the presence of

relatives and well wishers and before the family deity Muruga. After marriage, she lived in the house looking after her ailing senior wife and her son

Pichan. Ranganatha died on 23.7.1955 leaving behind a will dated 1.8.1955. A dispute arose when the said Seerangammal wanted to register the

will executed by Ranganatha bequeathing the suit properties in favour of her and others. There the question came up for consideration was as to

whether Seerangammal could be considered as legally wedded wife. Even though the Court rejected the question of marriage between Ranganatha

and Seerangammal, went on to hold that in view of the long cohabitation between the first plaintiff and Ranganatha from 1931 to 1955, in law it

shall be deemed that she had acquired the status of a wife. In order to come to the said conclusion the Division Bench also took note of number of

documents. In fact some of the documents are the letters written by Ranganatha himself to show that Seerangammal was treated as the wife and

the children born to her through him and they were parent to the children. In fact in Ex.A-13 the son of Ranganatha namely Pichan describes

Seerangammal as In Ex.A-7 she is described as wife of Ranganatha in Ex.A-31 a notice issued by Arunachala Nidhi Limited describing her as wife

of Ranganatha, Ex.A-32 is a discharge promissory note executed by Seerangammal in which she was titled as wife of Ranganatha and Ex.A-45

and A-46 Ranganatha had written to the second plaintiff therein referring to the first plaintiff as mother and so on. Only on the various documentary

evidence coupled with the facts of long cohabitation the Division Bench came to the conclusion that Seerangammal could be considered to have

acquired a status of wife. On the principle laid down in the above Division Bench judgment let me consider the facts of the present case. The

learned counsel for the appellant drew my attention to Ex.A-16 a partition deed between Subbaraya Reddy, Venkatasinha Reddy, Sundaravarada

Reddy sons of Ramasamy Reddy wherein Sundaram Ammal has been described as wife of Krishnasamy Naidu. Similarly, Ex.A- 18 a copy of the

sale deed executed by the Sundaram Ammal styling herself as wife of Thiru.Krishnasamy Naidu to and in favour of Sundaram Ammal, wife of

Devaraj. A reading of the above exhibits would go to show that the said Sundaram Ammal described as wife of Krishnasamy Naidu by some third

parties in different transactions and the same cannot be a conclusive proof to hold that the Sundaram Ammal is the legally wedded wife of Thiru-

Krishnasamy Naidu. On the contrary the learned counsel for the respondent brought to my notice that in Ex.B-7 the Sundaram Ammal has been

described by Krishnasamy Naidu himself as (concubine). Similarly in Ex.B- 10, Krishnasamy Naidu again described Sundaram Ammal as her

(concubine). Except the above documents relied upon by the learned counsel for the appellant, no other documents were brought to my notice to

establish her claim for long cohabitation and that too from either Krishnasamy Naidu or his son Pichan. The documents referred to by the learned

counsel for the appellant in Ex.A-7 are the documents executed by some third parties which cannot be given much weightage. In the given set of

facts, I do not think that the law laid down in the judgment reported in Seerangammal (died) and others v. E. B. Venkatasubramanian and others,

100 LW.58 could be made applicable to this case as there is no evidence to show there was long cohabitation between Krishnsamy Naidu and

Sundaram Ammal. Moreover the said issue has not been framed as a substantial question of law in the second appeal and also has been

concurrently against the plaintiff. Therefore I am of the considered view that the findings of the Courts below the Sundaram Ammal is not the legally

wedded wife and consequently Ramanujam Ammal cannot have any right ever the properties on the strength of her being the daughter of

Sundaram Ammal cannot be interfere.

In view of the above facts the second appeal fails and the same is dismissed. No costs.