K.Banumathi & Ors. v. Smt.R.Sakkubai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 27.04.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.55 of 2009and M.P.No.1 of 20091.K.Banumathi2.K.Vinodhkumar3.Naveen Kumar (Minor)4.K.Balai @ Praveen Kumar(minor) ..Appellants (Appellants/Appellants 3 and 4 rep.by their Defendants 13,14,15,16)mother and guardian Mrs.K.Banumathithe first appellant hereinvs.1.Smt.R.Sakkubai2.Varadan3.Prema4.Vasantha5.Purushothaman6.D.Rajamani ..Respondents (Respondents/7.Guruprasad(minor) Plaintiff and D4, D5, D8, rep. by D. Rajamani D9, D11 & D12) the 6th respondent herein This second appeal is filed against the judgement and decreedated 27.11.2008 passed by the learned Principal District Judge,Vellore, in A.S.No.4 of 2008, confirming the judgement and decreedated 11.9.2006 passed by the learned Subordinate Judge, Vellore,in I.A.No416 of 1984 in O.S.No.92 of 1983.For Appellants : Mr.C.Selvaraj, Sr.counsel for Mr.M.V.Muralidaran For Respondents : Mr.T.R.Rajaraman JUDGMENTThis second appeal has been filed by the legal heirs of the 7thdefendant-Kabeerdas, animadverting upon the judgement and decree27.11.2008 passed by the learned Principal District Judge, Vellore,in A.S.No.4 of 2008, confirming the judgement and decree dated11.9.2006 passed by the learned Subordinate Judge, Vellore, in https://hcservices.ecourts.gov.in/hcservices/ I.A.No.416 of 1984 in O.S.No.92 of 1983. For convenience sake, theparties are referred to here under according to their litigativestatus before the trial Court.2. A summation and summarisation of the relevant facts, whichare absolutely necessary and germane for the disposal of this secondappeal, would run thus:(a) The first respondent/plaintiff filed the suit O.S.No.92 of1983 as against as many as 12 defendants, seeking the followingreliefs:"(a) to declare the plaintiff's right to a moiety orwhatever share to which she may be found entitled;(b) to direct a division of the under mentionedproperties by metes and bounds and allotting her sharetherein;(c) to direct the defendants to deliver possession ofthe properties so allotted to her and in default directingsuch delivery through court;(d) to direct the defendants to render a true andcorrect account of the assets and income of the family thathave come into their hands."After the preliminary decree passed in the said suit, the plaintifffiled the I.A.No.416 of 1984 seeking to pass a final decree by makingthe following prayer:"to appoint a commissioner for suggesting modes ofdivision of the 'A' and 'B' schedule properties and afterconsidering his report pass a final decree allottingproperties to my share and directing delivery thereof tome."as against which, defendants 11 to 14 filed the counter and resistedthe application.(c) In fact the trial Court initially passed the ex-partepreliminary decree, and subsequently, on the basis of the finaldecree application filed by the plaintiff, passed the final decree infavour of the plaintiff, as against which, the legal heirs of the 7thdefendant-Kabeerdas, namely, defendants 13 to 16, filed the A.S.No.4of 2008, for nothing but to be dismissed by the first appellateCourt, confirming the final decree of the trial Court.(d) Being disconcerted and aggrieved by the said judgement anddecree in A.S.No.4 of 2008, this second appeal has been focussed by https://hcservices.ecourts.gov.in/hcservices/ the legal heirs of the 7th defendant-Kabeerdas on various grounds andalso suggesting the following substantial questions of law, which areextracted here under:i) Whether both the Courts rightly come to aconclusion that this appellants/7th defendant have no rightof share in the suit schedule of property?ii) Whether the trial Court rightly determined that theplaintiff entitled half of the share in the entire suitschedule of property?iii) Whether both the Courts rightly come to aconclusion that the 7th defendant is not the son of Kannammaland Thiruvengadapillai?iv) Whether the first appellate Judge rightly says thatthe illegitimate sons and daughters have no right of sharein the suit schedule of property?v) Whether the first appellate Court has gone into theentire records to determine that this appellants have noright of share in the suit schedule of property." (extract as found in the memorandum of second appeal)3. Heard the learned counsel appearing for the defendants 13 to16/appellants as well as the learned counsel for the firstrespondent/plaintiff.4. A poring over and perusal of the typed set of papers,including the certified copies of the judgements and decrees of boththe Courts below, would exemplify and display that the firstrespondent/plaintiff filed the suit for partition; the preliminarydecree was passed, granting half share to the plaintiff, recognisingher as the only legal heir of deceased Thiruvengadapillai, and theremaining half share in favour of D1, D3, D4 and D5, recognising themas the legal heirs of Srinivasapillai; Thiruvengadapillai andSrinivasapillai happened to be the sons of the deceasedVeerasamipillai and accordingly, their respective shares were dividedand allotted as such. Subsequently, two final decree applications,one at the instance of the plaintiff and another by the defendants 1,3, 4 and 5 were filed. At that time only the deceased Kabeerdasfiled the application for setting aside the ex-parte preliminarydecree, which was dismissed, as against which, C.M.A. was filed,which also was dismissed. 5. It is also a fact that Kannammal-D6 filed a separate suit asagainst the present appellants herein for declaring her status as thelegitimate wife of Thiruvengadapillai. The LRs of Kabeerdas, namely, https://hcservices.ecourts.gov.in/hcservices/ the appellants herein also, filed a separate suit. The suit ofKannammal was dismissed, as against which, she filed appeal and thesame is pending. The suit filed by the legal heirs of Kabeerdas-theappellants herein for partition was also dismissed at the numberingstage itself, as against which, CRP was filed and the same waswithdrawn as not maintainable and subsequently regular appeal wasfiled, which is also pending. To sum up, the original suit initiatedby Kannammal-D6 for declaration of her right as the wife ofThiruvengadapillai and the original suit initiated by the LRs ofKabeerdas are all pending at the appellate stage now as againstSakkubai-the first respondent/plaintiff herein.6. To complete the narration of happenings, I would set forththat in the meanwhile final decree was passed in the presentproceedings relating to O.S.No.92 of 1983. As against such finaldecree only, the appeal was filed and the same was dismissed, asagainst which alone, the present second appeal has been filed.7. The learned Senior counsel appearing for the appellants/legalheirs of D7-Kabeerdas would advance his argument to the effect thatthe matter might be remitted back to the trial Court, so that theinjustice done in dividing the suit properties into two halves,without taking into consideration the good and bad soil and theirrespective valuation, could be rectified. 8. Whereas, the learned counsel for the defendants 1, 3, 4 and 5would submit that the present appellants in the second appeal arehaving no right to file the second appeal at all for the simplereason that in the preliminary decree itself, the said Kabeerdas, wasnot allotted any share and the appellants in the second appealclaiming to be the LRs of Kabeerdas cannot over reach themselves orclaim any right, which Kabeerdas himself could not assert before thelower Court and get any order in his favour; once preliminary decreeis not in favour of Kabeerdas or in favour of the second appellants,they cannot claim any share in the final decree and consequently,they cannot raise their accusative finger as against the method andmanner in which the properties were divided. 9. I could see considerable force in the submission made by thelearned counsel for the defendants 1, 3, 4 and 5 for the reason thata person who is not allotted with any share or given with any rightin the preliminary decree cannot claim any share in the final decree.On that ground itself, obviously, the second appeal has to bedismissed, as no question of law much less substantial question oflaw is involved. 10. At this juncture my mind is reminiscent and redolent of thefollowing decisions of the Hon'ble Apex Court. https://hcservices.ecourts.gov.in/hcservices/ (i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH(MINOR) VS. SESHAMMAL,certain excerpts from its would runthus:-"17. After the amendment a second appeal can be filedonly if a substantial question of law is involved in thecase. The memorandum of appeal must precisely state thesubstantial question of law involved and the High Court isobliged to satisfy itself regarding the existence of such aquestion. If satisfied, the High Court has to formulatethe substantial question of law involved in the case. . . .. . . ."18. . . . . . It has to be kept in mind that theright of appeal is neither a natural nor an inherent rightattached to the litigation. Being a substantive statutoryright, it has to be regulated in accordance with law inforce at the relevant time. The conditions mentioned inthe section must be strictly fulfilled before a secondappeal can be maintained and no court has the power to addor to enlarge those grounds. The second appeal cannot bedecided on merely equitable grounds. The concurrentfindings of facts will not be disturbed by the High Courtin exercise of the powers under this section. Further, asubstantial question of law has to be distinguished from asubstantial question of fact. . . . . . 21. . . . . However, it is clear that the legislaturehas chosen not to qualify the scope of "substantialquestion of law" by sufficing the words "of generalimportance" as has been done in many other provisions suchas Section 109 of the Code or Article 133(1)(a) of theConstitution. The substantial question of law on which asecond appeal shall be heard need not necessarily be asubstantial question of law of general importance. InGuran Ditta v. Ram Ditta the phrase "substantial questionof law' as it was employed in the last clause of the thenexisting Section 100 CPC (since omitted by the AmendmentAct, 1973) came up for consideration and their Lordshipsheld that it did not mean a substantial question of generalimportance but a substantial question of law which wasinvolved in the case. In Sir Chunilal case theConstitution Bench expressed agreement with the followingview taken by a Full Bench of the Madras High Court inRimmalapudi Subba Rao v. Noony Veeraju(Sir Chunilal case,SCR p.557)"When a question of law is fairly arguable, wherethere is room for difference of opinion on it or where theCourt thought it necessary to deal with that question at https://hcservices.ecourts.gov.in/hcservices/ some length and discuss alternative views, then thequestion would be a substantial question of law. On theother hand if the question was practically covered by thedecision of the highest court or if the general principlesto be applied in determining the question are well settledand the only question was of applying those principles tothe particular fact of the case it would not be asubstantial question of law."This Court laid down the following test as proper test, fordetermining whether a question of law raised in the case issubstantial:(Sir Chunilal case, SCR pp.557-58)"The proper test for determining whether a question oflaw raised in the case is substantial would, in ouropinion, be whether it is of general public importance orwhether it directly and substantially affects the rights ofthe parties and if so whether it is either an open questionin the sense that it is not finally settled by this Courtor by the Privy Council or by the Federal Court or is notfree from difficulty or call for discussion of alternativeviews. If the question is settled by the highest court orthe general principles to be applied in determining thequestion are well settled and there is a mere question ofapplying those principles or that the plea raised ispalpably absurd the question would not be a substantialquestion of law."23. To be "substantial" a question of law must bedebatable, not previously settled by law of the land or abinding precedent, and must have a material bearing on thedecision of the case, if answered either way, insofar asthe rights of the parties before it are concerned. To be aquestion of law "involving in the case" there must be firsta foundation for it laid in the pleadings and the questionshould emerge from the sustainable findings of fact arrivedat by court of facts and it must be necessary to decidethat question of law for a just and proper decision of thecase. An entirely new point raised for the first timebefore the High Court is not a question involved in thecase unless it goes to the root of the matter. It will,therefore, depend on the facts and circumstance of eachcase whether a question of law his a substantial one andinvolved in the case or not, the paramount overallconsideration being the need for striking a judiciousbalance between the indispensable obligation to do justiceat all stages and impelling necessity of avoidingprolongation in the life of any lis.(See Santosh Hazari v.Purushottam Tiwari). https://hcservices.ecourts.gov.in/hcservices/

24. . . . (iii) The general rule is that High Court will notinterfere with the concurrent findings of the Courts below.But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below haveignored material evidence or acted on no evidence; (ii) thecourts have drawn wrong inferences from proved facts byapplying the law erroneously; or (iii) the courts havewrongly cast the burden of proof. When we refer to"decision based on no evidence", it not only refers tocases where there is a total dearth of evidence, but alsorefers to any case, where the evidence, taken as a whole,is not reasonably capable of supporting the finding."(ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAMSINGH AND ANOTHER.(iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYALA plain reading of those precedents would reveal and demonstrate thatunder Section 100 of the Code of Civil Procedure, Second Appealcannot be entertained, unless there is substantial question of lawinvolved. Here as held supra, there is no substantial question oflaw is found exemplified. 11. However, the learned Senior counsel for the appellants wouldsubmit that the preliminary decree itself is a defective one for thereason that D6-Kannammal and her children were not at all recognisedas LRs by the trial Court at the time of passing the preliminarydecree and that too in view of having ignored the admission made bythe plaintiff-Sakkubai. However, the learned counsel for thedefendants concerned would set forth and put forth his argument tothe effect that the Court earlier dismissed the applications and assuch, they cannot agitate the same in the second appeal, which ispreferred as against the final decree.12. A bare perusal of the plaint would display and demonstratethat the plaintiff in the plaint never admitted that the appellantsare entitled for any share. Paragraph 17 of the plaint is extractedhereunder:"In the notice issued by the plaintiff before suit thefact of invalidity of the marriage of the 6th defendant withThiruvengada Pillai and its legal consequences wereoverlooked. Hence a smaller share was claimed therein.This was the result of the ignorance or oversight of theMadras (Bigamy Prevention and Divorce) Act of 1949. She is https://hcservices.ecourts.gov.in/hcservices/ really entitled to a half share in the properties as theonly heir of late Thiruvengada Pillai."Even if any decision has to be rendered under Section 16 of the HinduSuccession Act, by keeping the children of the said Kabeerdas as hisillegitimate children, it should be based on factual findings. It isnot as though out of oversight, the lower Court simply ignored theshares of the appellants herein.13. Hence, I am of the considered opinion that in the secondappeal, all of a sudden, for the first time this Court cannot becalled upon to consider the entitlement of the second appellants, byvirtually reopening the preliminary decree passed by the trial Court.14. The learned Senior counsel's contention that the verydivision of the property in the final decree into two halves is mostinequitable, as the plaintiff colluded with the other defendants,namely, defendants 1, 3, 4 and 5 and trying to deprive the right ofthe appellants herein in the pending suits filed by them, cannot becountenanced in this second appeal for the very same reasons advertedto supra in my discussion.15. I am of the considered opinion that this Court, in thesecond appeal cannot interfere with the final decree, as it is quiteobvious and axiomatic that the appellants who were not allotted anyshare in the preliminary decree are having no locus standi toquestion the alleged inequitablity involved in dividing the suitproperties into two halves.16. In the result, the second appeal is dismissed, as I couldsee no question of law much less substantial question of law involvedin the matter. No costs. Consequently, connected miscellaneouspetition is dismissed.17. The learned counsel for the appellants would submit that theappellants may be given the liberty to work out their remedy in thepending first appeals which emerged in connection with two othersuits, for which, the learned counsel for the defendants would submitthat as per law they have to prosecute the pending appeals. It is forthe Court, which is seized of the appeals, to consider on merits thepending appeals.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarMsk https://hcservices.ecourts.gov.in/hcservices/ To1. The Principal District Judge, Vellore.2. The Subordinate Judge, Vellore.+ 1 c.c. to Mr. M.V. Muralidharan, Advocate. S.R.No.18157.+ 1 c.c. to Mr. T.R. Rajaraman, Advocate. S.R.No.18572. S.A.No.55 of 2009PA (CO)GSK 05.05.2009.