Allowed

Thangavel Padayachi v. Thangarasu

Madras HC15 Dec 2022SA/671/2002

Case brief

AI extract

What is this about?

This second appeal challenged a lower appellate decree reversing a trial court order confirming title to ancestral property. The High Court allowed the appeal, holding that a third party cannot question the legitimacy established by the trial court, and set aside the conclusion of permissive occupation due to lack of evidence. Judgment of the trial court in favor of the appellant is confirmed.

What did the court decide?

Second Appeal allowed; judgment and decree of the II Additional District Munsif confirmed; judgment and decree of the I Additional Sub Judge set aside.

Thangavel Padayachi Vs Thangarasu — Succession and Inheritance | Madras HC (2022)

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S.A.No.671 of 2002

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 15.12.2022

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CORAM

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THE HONOURABLE Ms. JUSTICE P.T. ASHA

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S.A.No.671 of 2002

Thangavel Padayachi

... Appellant

Vs.

Thangarasu

... Respondent

PRAYER: Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgement and Decree passed in A.S.No.27 of 1999, dated 20.09.2000 on the file of the I Additional Sub Judge, Villupuram in reversing the well considered judgment and decree in OS.No.607 of 1995 dated 22.01.1999 on the file of the II Additional District Munsif, Ulundurpet.

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For Appellant : Mr.V.Raghavachari For Respondents : Mr.S.Krishnasamy

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JUDGMENT

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S.A.No.671 of 2002

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The plaintiff is the appellant before this Court challenging the judgment and decree passed by the I Additional Sub Judge, Villupuram in A.S.No.27 of 1999 in and by which the learned Judge has reversed the judgment and decree of the II Additional District Munsif, Ulundurpet in OS.No.607 of 1995. The facts in brief are as follows and the parties are referred to in the same ranking as before the Trial Court.

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The suit OS.No.607 of 1995 was filed by the plaintiff for a declaration of his title to the suit property, recovery of possession of the property from the 1^st defendant and for damages from 09.02.1998 till the date of payment. It is the case of the plaintiff that the suit property and other properties are the ancestral properties of the plaintiff’s father Pethakutty Padayachi. The said Pethakutty Padayachi had two wives Kathaiye and Ponnamal. Perumai, the 2^nd defendant is the son of Pethakutty through his first wife and Thangavel, the plaintiff is born to Pethakutty's 2^nd wife.

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It is the case of the plaintiff that under two separate settlement deeds both dated 15.11.1976, Pethakutty Padayachi had settled his other properties both on the plaintiff and the 2^nd defendant. The plaintiff and the 2^nd defendant had taken possession of their respective shares and had also sold it to third parties. Pathkutty Padyachi died in the year 1979 and after his death there

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was a family arrangement between the plaintiff and the 2^nd defendant in respect of the suit property. The suit property had been mortgaged by Pethakutty Padayachi in favour of one Sinuvasa Padayachi on 01.05.1976. The oral arrangement was that the plaintiff should redeem the mortgage and the property could be taken by him. Accordingly, the plaintiff had redeemed the property on 01.05.1976 and thereafter the revenue records had been mutated in his name and he has been in possession and enjoyment of the same for over 15 years.

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The 1^st defendant had demanded the plaintiff to sell the suit property

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to him however, the plaintiff had refused the request. Thereafter he had got a

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sale deed from the 2^nd defendant who had no right to the property after the

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S.A.No.671 of 2002

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family arrangement. Since, there was an attempt made to trespass into the suit property, the plaintiff had issued a legal notice and thereafter filed the suit. Pending the suit on 07.09.1998, the 1^st defendant along with his henchman had trespassed into the suit property and therefore the prayer was amended to include the relief of recovery of possession.

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A written statement came to be filed by the 1^st defendant which was adopted by the 2^nd defendant in which they would contend that the plaintiff is an illegitimate son and not entitled to any share. The execution of the settlement deed was denied and the 1^st defendant would contend that even if the settlement deed is said to be true, Karuppiah had no right over the same. In the additional written statement filed after the amendment, the defendants have stated that there was no necessity for them to trespass into the property as possession was always with the defendant.

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The Trial Court had framed the following issues:-

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S.A.No.671 of 2002

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" “(1)thjp 2k; vjph;thjpf;F tHf;F brhj;Jf;fs; rk;ge;jkhf Vw;gl;ljhf brhy;Yk; FLk;g Vw;ghL

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cz;ikah?

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(2)thjp. tHf;F brhj;Jf;fisg; bghWj;J rPDthrg; gilahr;rp flid igry; bra;J chpikahsh; vd;w Kiwapy; mDgtpj;J te;jhh; vd;gJ cz;ikah?

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(3)thjp. bgj;jf;Fl;o gilahr;rpapd; rl;lg;goahf thhpR vd;w Kiwapy; g{h;tPf

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brhj;Jf;fis mile;J mDgtpj;J te;jhuh?

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(4)9/3/90. 7/7/93 njjpapl;l

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fpuag;gj;jpu';fs; cz;ikah? rl;lg;go

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bry;yf;Toajh?

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(5)thjp tHf;F brhj;Jf;fisg; bghWj;J tpsk;g[if kw;Wk; brhj;J RthjPdk; bgw

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chpik cilatuh?

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(6)thjp milaj;jf;f ntW ghpfhuk; vd;d?”

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The plaintiff had examined himself as P.W.1 and one Mannareddy and marked Ex.A.1 to Ex.A.10. On the side of the defendant, the 1^st defendant had examined himself as D.W.1 and 2^nd defendant as D.W.2 and Ex.B.1 to Ex.B.15 were marked.

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The learned appellate Judge proceeded to allow the appeal on the ground that the plaintiff is the illegitimate son of Pethakutty Padayachi and since the property is the ancestral property he is not entitled to any share in the same. The appellate Court also held that the plaintiff was in permissive occupation of the property.

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The above Second Appeal has been admitted on the following substantial questions of law:-

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" 1. Whether the lower appellate Court is right in holding that the appellant is not the legitimate son, when it had been admitted even by Pethakutti Padayachi that the appellant is her son by execution of Ex.A.1 on 15.11.1976?

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2. Whether the lower appellate Court is right in holding that the appellant is in permissive occupation of the property in the absence of any proof adduced by the second defendant?

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3. When DW2 had admitted the relationship between parties, is it right on the part of lower appellate court to hold that the appellant is the illegitimate son of Pethakutty?

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4. When the appellant has discharged the loan under Ex.A2 and resumed possession and had the patta changed in his name and paid Kist, is it proper on the part of lower appellate Court to conclude the appellant is in permissive occupant?

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5. Whether the lower appellate court is right in upholding Ex.B.1 & B2 when the executant of the document has no legal right in the property?

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6. When the order of lower appellate court is not against the judgment in 2000 (1) SCW Page 723, inasmuch as the lower appellate Court has failed to give any reasons for reversing the judgment of the Trial Court? "

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Heard Mr.Raghavachari, learned counsel appearing on behalf of

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the appellant and Mr.Krishnasamy, learned counsel for the respondent.

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The lower appellate Court has non-suited the plaintiff only on the ground that he is not the legitimate son of Pethakutty Padayachi and therefore not entitled to the properties which are ancestral. This finding of the learned Judge is fallacious on two counts.

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i) The said Pethakutty Padayachi should have married the plaintiff’s mother much prior to 1946, since the age of the plaintiff on the date of the filing of the suit in the year 1995 was about 49 years which means he should have been born in the year 1946. That apart, Pethakutty Padayachi had himself recognized the plaintiff as his son and executed Ex.A.1, settlement deed in his favour.

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ii) The issue with regard to the legitimacy or otherwise of the plaintiff had been dealt with by the Trial Court and the Trial Court had held that the plaintiff was the legitimate son of Pethakutty Padayachi and this finding has not been challenged by the 2nd defendant who alone could challenge the legitimacy or otherwise of the plaintiff's birth. The appellant herein who is the third party cannot be permitted to question the legitimacy.

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The Hon'ble Supreme Court in the Judgment reported in (2003) 1

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SCC 34 - Baldev Singh Vs. Surinder Mohan Sharma and Others has

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clearly spelt out that a third party cannot be permitted to question the relationship of a person born out of a relationship of a party born out of a cohabitation of his parents particularly when the 2nd defendant who is the daughter of Pethakutty Padayachi has not challenged the finding of the Trial Court in this regard.

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It is clear from the evidence of D.W.2 that there was an arrangement between the parties with reference to the settlement of the dues of Pethakutty Padayachi to one Sinuvasa Padayachi. The 2nd defendant would admit that it was the plaintiff who had repaid Sinuvasa but she would state that money was extended by her, however, there is no proof for the same. That apart, as to why the 2nd defendant should settle the dues of Sinuvasa. through the plaintiff has not been explained. When the 2nd defendant has admitted one part of the family arrangement, namely, the settlement of the dues the 2nd portion is also presumed to be admitted. That apart, the plaintiff had filed Ex.A.3, A.4, A.5, A.9 and A.10 to show possession even as early as in the year 1987 itself. Therefore, it is clearly evident that it is the plaintiff who is in possession of the property. The defendant who claims to be in possession of the property has not produced

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any document to prove the same.

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Perambai Ammal having entered into an oral family arrangement with her brother, the plaintiff has executed Ex.B1 to Ex.B.3 sale deeds without having any title over the same and therefore it does not convey any right upon the 1st defendant.

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The Appellate Court has analyzed the evidence afresh but however has not given reasons as to why the judgment of the Trial Court was wrong and has not provided reasons for reversing the same. In view of the above, the 1^st and 3^rd substantial questions of law are answered in favour of the appellant by holding that the Lower Appellate Court had erroneously declared the appellant to not be the legitimate son of Pethakutty. The Lower Appellate Court had not given any reasons as to why it comes to the conclusion that the appellant is in permissive occupation of the property, particularly when no documents have been produced to prove the said contention of the 2nd defendant. Therefore, the Substantial questions of law No.2 and 4 are answered against the defendants. The substantial questions of law No.5 and 6

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are also answered against the defendants in the light of the discussions supra.

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In fine, the Second Appeal is allowed and the judgment and decree of the II Additional District Munsif, Ulundurpet is confirmed and the judgment and decree of the I Additional Sub Judge, Villupuram is set aside. No costs.

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15.12.2022

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Index : Yes/No Internet : Yes/No shr To

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1.The I Additional Sub Judge, Villupuram. 2.The II Additional District Munsif, Ulundurpet.

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S.A.No.671 of 2002

P.T. ASHA, J,

shr

S.A.No.671 of 2002

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S.A.No.671 of 2002

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Thangavel Padayachi v. Thangarasu

Case brief

What is this about?

What did the court decide?

Thangavel Padayachi v. Thangarasu

Case brief

What is this about?

What did the court decide?

What the court decided

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