This second appeal has been filed by the appellant / 4 th defendant challenging the judgment and decree passed by the first appellate Court in A.S.No.22 of 2008 dated 21.01.2009, reversing the judgment and decree passed by the trial Court in O.S.No.253 of 2006, dated 06.11.2007.
2. For better appreciation, the parties are referred to as per their rank in the suit.
3. The plaintiff has filed the suit in O.S.No.253 of 2006 for partition claiming 1/6 share in the suit property. According to the plaintiff, the property comprised in Re-Survey No.231/5 of Esanthimangalam Village having an extent of 1.1/2 cents originally belonged to the father of the plaintiff. His father died 40 years back leaving behind his widow Muthammal and four sons viz., (1) Sankaranpillai, (2) Madhevan Pillai, (3) Chenthil Perumal Pillai (Plaintiff), (4) Thanu Pillai (4th defendant) and three daughters (1) Pankajam (1st defendant), (2) Lakshmi (2nd defendant), (3) http://www.judis.nic.in 3 Pappa (3rd defendant). The elder brother Sankaranpillai died leaving behind the defendants 5 to 8. Another brother Madevan Pillai died as bachelor and the mother of the plaintiff also died on 27.02.2005. After the death of the father of the plaintiff, the southern 3/4 cents was sold to one Arunachalam Pillai, who is the uncle of the plaintiff, for a valid sale consideration. The northern portion having an extent of 3/4 cent, which is small shed (godown) and vacant area, is in the joint possession and enjoyment of the plaintiff and other heirs. Thus, he is entitled to 1/6 share. The mother of the plaintiff executed a Will bequeathing the suit property in favour of the plaintiff and the 4th defendant. The 4th defendant filed a suit in O.S.No.336 of 2005 for declaration that the Will executed by his mother is void, only impleading the plaintiff as defendant. The suit was decreed as prayed for. In the said suit, the 4 th defendant admitted and consented for allotting shares to all the legal heirs of the father of the plaintiff. When the plaintiff asked for partition, the 4th defendant refused to do the same. Hence, he filed the suit for partition.
4. According to the 4th defendant, as per partition deed dated 01.09.1955, his father derived title and possession over the plaint schedule property and remaining property. In the year 1970, his father had executed a registered sale deed in respect of the southern 3/4 cents. http://www.judis.nic.in 4 The plaint schedule property is the norther 3/4 cents. On 06.09.1975, his mother Muthammal executed a registered hypothecation deed in favour of one Chandran for Rs.300/- with monthly interest of Rs.1. He alone maintained his mother Muthammal and resides in the building situated in the plaint schedule property. The mortgage debt raised to Rs.7,000/-. He redeemed the suit property by paying Rs.7,000/-. and hence, mortgage deed was entrusted to him. By birth, he is having 1/4 share over the plaint schedule property. After the death of the father, father's undivided 1/4 share is devolved upon the plaintiffs and the defendants. Thus, he is entitled to 7/24 share. In the year 2000, he spent Rs.5,000/- for renovation of the building in the suit property. The plaintiff is also legally entitled to 7/24 share subject to payment of hypothecation amount and improvement over the plaint schedule property. The admission made by him in O.S.No. 336 of 2005 is not a conclusive one. An admission in respect of a question of law in O.S.No.336 of 2005 is not binding on the parties. Lakshmi and Bagavathiammai had jointly executed release deed dated 08.09.2004 in his favour along with Murugan and Pechiammai, and hence, he is entitled to 1/3 share in the suit property along with the mortgage amount.
5. On the side of the plaintiff, the plaintiff himself was examined as PW1 and Exs.A1 to A8 were marked. On the side of the defendants, the http://www.judis.nic.in 5 contesting 4th defendant himself was examined as RW1 and Exs.B1 to B3 were marked. During the pendency of the suit, the 3rd defendant died without any issue.
6. The trial, after considering the oral and documentary evidence, declared that the plaintiff is entitled to 1/6 share. However, the trial Court directed the plaintiff to pay 1/6 share over the settlement of mortgage loan of Rs.7,000/- and accordingly, passed a preliminary decree. Aggrieved by the same, the plaintiff has filed appeal suit in A.S.No.22 of 2008. The first appellate Court, after reappraising the oral and documentary evidence, has held that the plaintiff is not liable to pay anything to the 4 th defendant towards the alleged settlement of mortgage loan and set aside the judgment and decree passed by the trial Court and decreed that the plaintiff is entitled to 1/5 share in the suit property, in view of the death of the 3rd defendant without any issue. Challenging the judgment and decree passed by the first appellate Court, the 4th defendant has filed the present second appeal.
7. At the time of admission, the following substantial questions of law are framed for consideration:
1.Whether the 1st Appellate Court is right in ignoring the principle that succession opens prior to http://www.judis.nic.in 6 1990 i.e., before the Act 1 of 1990 as the father Mr.Nalla Perumal died before 1990?
2. Whether the 1st Appellate Court is right in applying the Act 1 of 1990 and decreeing the suit for the share of 1/4 to plaintiff and granting more shares to defendants 1 to 3 who are female heirs of Nalla Perumal Pillai?
3. Whether the 1st Appellate Court is right in demanding evidence to prove admitted fact that the properties in the hands of Nalla Perumal Pillai is ancestral in nature?
4. Whether the Courts below are right in not taking into account, that the possession of original receipt of discharge of mortgage debt by the 4th defendant is sufficient enough to prove that the 4th defendant alone discharged that too when the 4th defendant is the younger brother of plaintiff?
5. Whether the 1st Appellate Court is right in decreeing the suit as prayed for by the plaintiff?
8. The learned counsel for the 4th defendant submitted that though the final decree has been passed in this case, he is entitled to file this appeal against the preliminary decree. He would further submit that as per Hindu Succession Act, 1956 and the Tamil Nadu amended Act 1 of 1990, the defendants 1 to 3, being female heirs of Nallaperumal Pillai, are not entitled to get any share in the ancestral property. The first appellate http://www.judis.nic.in 7 Court, without considering the same, has erroneously declared that the plaintiff is entitled to 1/5 share in the suit property. He would further submit that the 4th defendant alone redeemed the suit property by paying entire mortgage debt and to that effect, he has also produced Ex.B3 – receipt for payment of mortgage debt and that considering the said aspects, the trial Court has rightly directed the plaintiff to pay his 1/6 share over the mortgage debt, but the first appellate Court, without considering the same, has erroneously dismissed the same. Thus, he prayed to allow this appeal.
9. The learned counsel appearing for the plaintiff submitted that this second appeal is not maintainable, as the final decree has already been passed in this case. The 4th defendant did not file any appeal either against the preliminary decree or against the final decree. Therefore, as per Section 97 of C.P.C. the present appeal is barred from questioning the legality of the preliminary decree. He would further submit that as per Ex.B3, the mother alone redeemed the property by paying the mortgage debt amount and it is not the 4 th defendant. The trial Court, without considering the above aspect, has erroneously directed the plaintiff to pay his 1/6 share over the mortgage debt. But, the first appellate Court, after reappraising the entire evidence, has rightly dismissed the said direction http://www.judis.nic.in 8 issued by the trial Court. Thus, he prayed to dismiss this appeal.
10. It is not in dispute that the suit property was allotted to the share of Nallaperumal Pillai, who is the father of the plaintiff and the defendants 1 to 4, through partition and it has become absolute property of Nallaperumal Pillai. It is also not in dispute that out of 1-1/2 cents allotted, after the death of Nallaperumal Pillai, his legal heirs sold 3/4 cent in favour one Arunachalam. The remaining property ie., 3/4 cent is the suit property. The said Nallaperumal Pillai died leaving behind four sons and three daughters. The eldest son Sankaran Pillai died and his legal heirs are impleaded as defendants 5 to 8. Another son Madahevan Pillai died as bachelor. The mother of the parties by name Muthammal also died on 27.02.2005. During the pendency of the suit, the 3 rd defendant, who was maid, died.
11. It is seen that the trial Court, without taking into account the death of the 3rd defendant, has declared that the plaintiff is entitled to 1/6 share. Questioning the same and also challenging the direction issued by the trial Court directing the plaintiff to pay 1/6 share over the mortgage debt amount, the plaintiff had filed appeal. The first appellate Court, after going into the merits of the case, had declared that the plaintiff is entitled http://www.judis.nic.in 9 to 1/5 share and that the 4th defendant is not entitled to claim any sum towards mortgage debt. Aggrieved by the same, the 4th defendant has filed this appeal.
12. According to the plaintiff, this second appeal is barred by Section 97 of the Civil Procedure Code. Section 97 of C.P.C. says that if any aggrieved party fails to appeal against a preliminary decree, its correctness cannot be challenged by appeal against the final decree. So an appeal against the final decree would inevitably be limited to the points arising from the proceedings taken subsequent to the preliminary decree. In an appeal against the preliminary decree, its correctness can be questioned.
13. Admittedly, in this case, challenging the preliminary decree, the plaintiff himself filed an appeal and the first appellate Court, after considering the change of circumstances ie., the death of the 3 rd defendant and also going into the merits of the case, has set aside the decree passed by the trial Court and declared that the plaintiff is entitled to 1/5 share in the suit property. Questioning the same, the 4th defendant has filed this second appeal. Therefore, this Court is of the view that this appeal is not barred by Section 97 of C.P.C.
http://www.judis.nic.in 10
14. It is the submission of the plaintiff that as the final decree has already been passed and the shares were also allotted, this second appeal is not maintainable. In the case of Ramien Vs. Veerappudian reported in AIR 1914 Mad 473 (2), this Court has held that where an appeal against the preliminary decree was filed after passing of the final decree, the right of a party to appeal against a preliminary decree was not affected by the subsequent passing of the final decree. The same view was followed in the case of Lakshmi Vs. Marudevi, reported in AIR 1915 Mad 197.
15. In the decision in Kanakayya Vs. K.Lakshmayya reported in AIR 1951 Mad 218, this Court has held that there is no provision anywhere in the Code of Civil Procedure that takes away the right of a party to appeal from a preliminary decree or an order of remand, if a final decree happens to be passed in the suit before the appeal against the preliminary or the order of remand is presented. Nor is there any provision in the Code that an appeal against a preliminary decree or an order of remand properly presented becomes defunct by the passing of a final decree pending the appeal.
16. From the above decisions, it is clear that an appeal filed against preliminary decree is not incompetent, even if a final decree is passed http://www.judis.nic.in 11 before the appeal presented.
17. Admittedly, in this case, the 4th defendant did not challenge the preliminary decree. However, the plaintiff himself had filed an appeal against the preliminary decree. Though it is stated by the plaintiff that he has challenged only against the direction issued by the trial Court to pay his 1/6 share over the mortgage debt amount to the 4th defendant, it is seen that the first appellate Court itself went into the merits of the case and declared that the plaintiff is entitled to 1/5 share in the suit property. Therefore, the 4th defendant has rightly availed the right of second appeal. In view of the above, this Court is of the view that though the final decree is passed, he is entitled to maintain this appeal.
18. Now, let us analyse the questions of law. It is not in dispute that the suit property is the ancestral property and the same was allotted to the share of the father of the plaintiff and the defendants 1 to 4 through partition and it has become his absolute property. When it is not in dispute that the suit property is an ancestral property, the same need not be proved. The father of the plaintiff is stated to be died 40 years back. After the death of Nallaperumal Pillai, his legal heirs, including the plaintiff and the defendants 1 to 4, have been in joint possession and enjoyment the http://www.judis.nic.in 12 suit property as coparceners. Admittedly, the suit was filed for partition, after insertion of the amendment in Section 6 of the Hindu Succession Act. Therefore, the female heirs are also entitled to equal share in the suit property. More over, the 4th defendant himself admitted and consented for allotting equal share to all the heirs of Nallaperumal Pillai in the suit filed by him in O.S.No.336 of 2005. Therefore, now he cannot agitate contrary to the same.
19. Though the 4th defendant submitted that his sisters Lakshmi and Pankajam have already executed a release deeds in his favour and therefore, he is entitled to 1/3rd share in the suit property, he has not proved the same by producing any documents and therefore, the said contention of the 4th defendant cannot be accepted.
20. According to the 4th defendant, he alone paid the mortgage debt amount of Rs.7,000/- and redeemed the suit property. In support of his contention, he produced Ex.B3 dated 16.09.1997. It is seen that the mortgage deed was executed by the mother of the plaintiff on 06.09.1975 for a sum of Rs.300/-. As per Ex.B3, the principal mortgage amount along with interest was paid to the mortgagee by the mother of the plaintiff. Merely because the 4th defendant has been in possession of receipt of http://www.judis.nic.in 13 discharge of mortgage debt, it cannot be concluded that the entire debt has been discharged by him alone. The receipt may be handed over to him for the reason that he is one of the coparceners. If really he alone discharged the debt, that could have been mentioned in the receipt. But, it is not mentioned so in the receipt. Therefore, the contention of the 4 th defendant cannot be sustained.
21. As rightly held by the first appellate Court, since the 3 rd defendant died issueless, her share can be equally divided among other sharers and thus, the plaintiff and the 4 th defendant are entitled to 1/5 share each in the suit property. This Court does not find any reason to interfere with the judgment of the first appellate Court. Except the 3 rd question of law, all the other questions of law are answered against the 4 th defendant/appellant. Hence, this second appeal is liable to be dismissed.
22. In the result, this second appeal is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.
1.The Principal Subordinate Judge, Nagercoil.
2.The Principal District Munsif, Nagercoil.
3.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.
judgment made in S.A.(MD) No.282 of 2015 30.07.2019 http://www.judis.nic.in