Full Judgment Text
REPORTABLE
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
J U D G M E N T
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
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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
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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
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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.
(Dr. MUKUNDAKAM SHARMA)
New Delhi,
September 15, 2008
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