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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