Samikannu(Deceased) v. Indira Gandhi

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 19.06.2009CORAM:THE HON'BLE MR. JUSTICE M.DURAISWAMY Second Appeal No.1127 of 20001. Samikannu(Deceased)2. Chandra3. Agoram4. Minor Gnanasekaran5. Minor Guruprakash6. Minor Revathi .. Appellants/Defendant (Appellants 3 to 6 are brought on record as LRs of the deceased 1stappellant and 2nd appellant, appointedas guardian for minor appellants 4 to 6 as per order of court dated 30.01.2002made in CMP Nos.5&6 of 2002) Vs Indira Gandhi .. Respondent/Plaintiff SECOND APPEAL filed under Section 100 of the Code of Civil Procedureagainst the judgment and decree dated 20.11.1999 made in A.S.No.58 of1999 on the file of the Court of the Additional Subordinate Judge,Mayiladuthurai, modifying the Judgment and Decree dated 12.07.1999made in O.S.No.50 of 1994 on the file of the Court of DistrictMunsif, SirkaliFor Appellants:Mr.A.Muthukumar.For Respondent : Mr.P.Veeraraghavan.J U D G M E N T The above Second Appeal arises against the judgment anddecree dated 20.11.1999 made in A.S.No.58 of 1999 on the file of theCourt of the Additional Subordinate Judge, Mayiladuthurai, modifyingthe Judgment and Decree dated 12.07.1999 made in O.S.No.50 of 1994 onthe file of the Court of District Munsif, Sirkali, In fact the above https://hcservices.ecourts.gov.in/hcservices/ second appeal has been filed only against the finding which wentagainst the appellants.2. In the above second appeal, the defendants in the suitare the appellants and the respondent is the plaintiff in the suit.3. The plaintiff filed suit in O.S.No.50 of 1994 on thefile of the District Munsif Court, Sirkali for permanentinjunction.4. The brief case of the Plaintiff is as follows:- (i) The plaintiff is the daughter of 1st Defendant throughhis second wife Vasantha. The plaintiff instituted the suit statingthat the first item of the suit property was settled by the 1stdefendant in favour of her mother in Ex.A1 and she has been inpossession and enjoyment of the same. Items 2 and 3 of the suitproperties were purchased by her mother. Her mother bequeathed items2 and 3 of the suit property to the plaintiff under Ex.A18, WILLdated 15.10.1977. Since the defendants tried to interfere with thepossession and enjoyment of the suit properties, plaintiff filed thesuit.5. The brief case of the defendants are as follows:-(i) According to the 1st defendant, the settlement deedexecuted by him is only a sham and nominal document and therefore, noright has passed on to the plaintiff. The defendants also deniedthat items 2 and 3 were purchased in the name of the second wife, themother of the plaintiff. Therefore, it was only a benamytransaction. The defendants also contented that the WILL said tohave been executed by vasantha, the mother of the plaintiff is not agenuine one. According to the defendants, they are in possession andenjoyment of the suit properties and prayed for dismissal of the suit.6. Before the trial court, on the side of the plaintiffs,four witnesses were examined and 18 documents were marked as Exs.A1to A18. On the side of the defendants, six witnesses were examinedand 8 documents were marked as Exs.B1 to B8. The trial court, aftertaking into consideration the oral and documentary evidences ofboth the parties, found that Ex.A18, WILL dated 15.10.1977 is notgenuine and also found that the plaintiff was not in possession ofthe property and dismissed the suit. 7. Aggrieved over the judgment and degree of the trialcourt, the plaintiff filed an appeal in A.S.No.58 of 1999 on the fileof the Additional Sub Court, Mayiladudurai and the lower appellatecourt after taking into consideration the materials available onrecord found that Ex.A18, the WILL is genuine, but found that theplaintiff was not in possession of the property and confirmed thejudgment and decree of the trial court and dismissed the appeal https://hcservices.ecourts.gov.in/hcservices/

8. Aggrieved by the findings of the lower Appellate Court,with regard to Ex.A18, the WILL dated 15.10.1977, the defendantsfiled the above second appeal.9. Heard Mr.A.Muthukumar, learned counsel appearing forthe appellants and Mr.P.Veeraraghavan, learned counsel appearing forthe respondent.10. At the time of admission of above Second Appeal, thefollowing substantial questions of law arose for consideration."i). Whether the lower appellate Court erred inlaw in reversing the finding of the trial Court thatEx.A-18 is not a true WILL without adverting to theseveral factors relied on by the trial Court?ii) Whether the lower appellate Court erred in lawin holding that Ex.18 is a true WILL overlooking thematerial discrepancies in the evidence of the attestorsP.Ws.2 and 3 and that the propounder has not dischargedthe onus that lay upon her? iii) Whether the lower Court erred in holding thatitems 2 and 3 of the suit properties were not purchasedbenami in the name of the plaintiff's mother, whenadmittedly the 1st defendant was living in Isles andsending monies to India?"11.On considering the materials available on record andthe submissions made by the counsels on both the sides, it could beseen that the above second appeal has been filed only against theadverse findings of the trial court, finding, Ex.A18 WILL as genuine.So far as the decree is concerned, the lower Appellate Courtconfirmed the decree of the trial court, which is in favour of thedefendants. 12. At the outset the counsel for respondent contended thatthe second appeal is not maintainable for the reason that the appealhas not been filed against the Judgment and decree and it has beenfiled only against the adverse findings against therespondent/defendant. In support of the said contention, the learnedcounsel for the respondent relied on a judgment reported in AIR 2003Supreme Court 1989-Allahabad (Banarsi v. Ram Phal) which reads asfollows: "8. Sections 96 and 100 of the CPC make provisionfor an appeal being preferred from every original decree orfrom every decree passed in appeal respectively; none of theprovisions enumerates the person who can file and appeal.However, it is settled by along catena of decisions that to be https://hcservices.ecourts.gov.in/hcservices/ entitled to file an appeal the person must be one aggrieved bythe decree. Unless a person is prejudicially or adverselyaffected by the decree he is not entitled to file an appeal.See Phoolchand and another v. Gopal Lal, 1967(3) SCR 153; Smt.Jatan Kanwar Golcha v. M/s. Golcha Properties (P) Ltd., 1970(3) SCC 573; Smt. Ganga Bai v. Vijay Kumar and others, (1974)2 SCC 393. No appeal lies against a mere finding. It issignificant to note that both sections 96 and 100 of the CPCprovide for an appeal against decree and not againstjudgment.”13. From the above decision of the Apex Court, it could beseen that under Section 100 of CPC, no second appeal will lie againstany adverse finding and Second appeal will lie only against thejudgments and decrees. 14. Therefore, applying the principles laid down in theabove judgment, I am of the view that the above second appeal is notmaintainable and is liable to be dismissed. Accordingly, the aboveSecond Appeal is dismissed. However, there will be no order as tocosts.ars Sd/- Asst. Registrar /True Copy/ Sub Asst.RegistrarTo1. The Additional Subordinate Judge, Mayiladuthurai 2. The District Munsif, Sirkali.Copy to Record Keepr, V.R.Section, High Court, Madras.+ 1 cc to Mr.A.Muthukumar, Advocate, SR.24503+ 1 cc to Mr.P.Veeraghavan, Advocate, SR.24940. S.A. No.1127 of 2000MBS(CO)GS/09/07/0906.2009 https://hcservices.ecourts.gov.in/hcservices/