C.Krishnan & Ors.
Vs. Kistammal & Ors. [2008] INSC 1552 (15 September 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2008 (Arising out of
SLP (Civil) No.8142 of 2007) C. Krishnan and Ors. ...Appellants Versus
Kistammal and Ors. ...Respondents
Dr. ARIJIT PASAYAT, J
1.
Leave
granted.
2.
Challenge
in this appeal is to the judgment of a learned Single Judge of the Madras High
Court disposing of Second Appeal. The only grievance in the appeal is that the
High Court in the appeal could not have set aside the decree of the trial Court
so far as it relates to the partial relief granted in the suit filed by the
plaintiffs-appellants when there was no appeal so far as said relief is
concerned.
3.
Learned
counsel for the appellants pointed out to the following observations of the
High Court.
"In the light of
the above discussion, it is to be held that there was division in the family
and Munusamy Reddy and Ramu Reddy separated themselves from other coparceners
at the time of their death and therefore the shares so obtained by them under
the division, certainly would pass on to their heirs, by succession and not by
survivorship upon the surviving brothers. The deceased first plaintiff,
suppressing all the above facts, misleading the Court, obtained a decree which
is liable to be set aside.
In this case, whether
Ex.A6 represents the correct date of death of Munusamy or not may not have much
significance, in view of my findings supra. The first Appellate Court has held
accepting the oral evidence of the parties and drawing presumption under law
that Ex.A.6 is true and that will prove the date of death of Munusamy Reddy as
25.11.1935. Assuming it is correct, that alone will not give any absolute right
over the suit properties to the deceased first plaintiff, to be inherited by
other plaintiffs vis., the respondents herein.
Therefore, it is
unnecessary for us to dwell upon Ex.A.6 to find out its validity or correctness
as the case may be. For these reasons, the lower Appellate Court is not
justified in decreeing the suit when the deceased first plaintiff Chengappa
Reddy is only one 2 of the four brothers, as if he had inherited the shares of
two brothers viz., Munusamy Reddy and Ramu Reddy, excluding the others and
ignoring the division of coparceners, as established. Therefore, it is to be
held as rightly put it in substantial question No.2, the lower Appellate Court
fell into an error, which is to be rectified by allowing this appeal, answering
these two substantial questions of law accordingly.
The result therefore
is the appeal is allowed setting aside the decree and judgments of both the
courts below, regarding the declaration and injunction granted in respect of
items No.1 to 9 of the suit properties. Thus, the suit in O.S. No.593 of 1981
on the file of the District Munsif, Ponneri is dismissed, in respect of items
No.1 to 9 of the suit properties. So far as the item No.10 of the suit
properties is concerned, the suit is decreed, granting the reliefs of
declaration and injunction as prayed for."
4.
In
the counter-affidavit filed by the respondents it has been stated as follows:
"Aggrieved by
the above judgment, the answering respondent filed the Second Appeal No.249 of
1995 confirming the findings recorded by the Ist Appellate Court only in
respect of Items 1 to 9 of the plaint. The Hon'ble High Court after framing the
questions of law came to a correct conclusion that the lower Appellate Court
fell into error in ignoring the division in the family. The High Court further
held that the shares so obtained under the division would pass on to their
heirs by 3 succession and not survivorship upon the surviving brothers. The
Hon'ble High Court while allowing the appeal filed by the answering respondents
has set aside the decree of the Ist Appellate Court with regard to Items 1 to 9
of the plaint schedule properties. The High Court accordingly confirmed the
decree granted by the trial Court with regard to items 1 to 9 and with regard
to item 10 of the plaint schedule properties, it confirmed the decree passed by
the trial Court."
5.
It
is accepted that the respondents filed Second Appeal where relief claimed was
confined to plaint property Item Nos.1 to 9, which was allowed by the High
Court. With regard to Item No.10 the respondents did not file appeal and the
High Court should have affirmed the decree granted by the trial Court. With
regard to Item No.10 the stand is very fair. But the stand taken to the effect
that the High Court has affirmed the decree granted by the trial Court with
regard to Item No.10 does not appear to be so clear. It has been stated that so
far as Item No.10 of the suit property is concerned the suit was decreed
granting relief of declaration and injunction as prayed for. While so
observing, other part of the conclusions of the High Court that the appeal was
allowed setting aside the decree and judgments of courts below regarding the
declaration and injunction granted in respect of Item Nos. 1 to 9 of the suit
properties is not clear. It is, therefore, directed that the decree passed by
the trial Court is to be restored.
The impugned judgment
of the High Court is modified to the aforesaid extent.
6.
The
appeal is disposed of without any order as to costs.
.........................................J.
(Dr. ARIJIT PASAYAT)
..........................................J.
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