Dismissed¶116

Selvam (Alias) Selvakanth v. P. Chinnaiyan

Madras HC3 Jun 2025CMP/13627/2024

Case brief

AI extract

What is this about?

Transposition of second Appellant/defendant as Respondent in appeal; Order 41 Rule 4 and Order 23 Rule 1(A) CPC; Section 96 r/w Order 41 Rule 1 CPC; estoppel; approbate and reprobate; inconsistent and shifting stands; clean hands; Will not disclosed or marked at trial; remedy in separate Suit; preliminary decree for partition of Item Nos.1 and 2; O.S.No.9 of 2016 Principal District Judge Perambalur; A.S.No.419 of 2023; Suzuki Parasrampuria Suitings (2018) 10 SCC 707; Amar Singh (2011) 7 SCC 69; Jagbandhu AIR 1922 Cal 459; Ramaswami AIR 1947 Madras 395; Madaka Anjaneyulu 2001 (1) ALJ 172; Joint Action Committee of Air Line Pilots' Assn (2011) 5 SCC 435; dismissal with no costs; correction of counsel names by order dated 16.07.2025.

What did the court decide?

None; Civil Miscellaneous Petition dismissed with no costs. ¶116

Selvam (Alias) Selvakanth Vs P. Chinnaiyan — Madras HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

None; Civil Miscellaneous Petition dismissed with no costs.

¶116

Issue for consideration

Whether the Second Appellant is to be transpose as a Respondent in the Appeal? +1 more

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Court's answer

The conduct of the second Appellant/Petitioner, who as third Defendant contested O.S.No.9 of 2016 and whose written statement was adopted by Defendants 1 and 2, attracts the principle of estoppel in taking an inconsistent stand; his transposition as Respondent cannot be permitted.

¶98

Ratio / Principle

Allowing the second Appellant to give a contrary claim pending Appeal cannot be permitted, as the Appeal is a continuation of the proceeding in O.S.No.9 of 2016 and the entire evidence let out by the Defendants would have to be set aside, causing confusion.

¶96

Key takeaways

The rulings cited by the learned Counsel for the Petitioner are not applicable to the facts of this case as the facts are in a different context.ratio¶111
The alleged Will was not at all placed before or marked during trial; if at all the Petitioner is prejudiced, he has to seek remedy in a separate Suit and not in this Appeal.ratio¶115
The Point for consideration is answered against the Petitioner and in favour of the Respondent; the Civil Miscellaneous Petition is dismissed as having no merits.

Detailed headnote1 paragraphs

Madras High Court, single Judge (Sathi Kumar Sukumara Kurup, J.), order dated 03.06.2025 in C.M.P.No.13627 of 2024 in A.S.No.419 of 2023 (counsel names in appearance portion corrected by subsequent order dated 16.07.2025): dismissed a Civil Miscellaneous Petition under Order 41 Rule 4 and Order 23 Rule 1(A) of the Civil Procedure Code filed by the second Appellant (third Defendant in O.S.No.9 of 2016, a partition suit tried by the Principal District Judge, Perambalur, which ended in a preliminary decree for partition of Item Nos.1 and 2 in favour of the Plaintiff and dismissal as to Item Nos.3 to 9) seeking transposition as Respondent in the Appeal. Held: the Petitioner had contested the suit as a Defendant, his written statement being adopted by Defendants 1 and 2; after the decree he sought to rely on a Will allegedly executed in favour of the second Defendant but never disclosed or marked at trial; permitting him to transpose and take a contrary stand would require setting aside the entire defence evidence in an Appeal that is a continuation of the suit, and his conduct attracts estoppel and the bar against approbate and reprobate (Suzuki Parasrampuria Suitings Private Limited (2018) 10 SCC 707 applied; Jagbandhu AIR 1922 Cal 459, Ramaswami AIR 1947 Madras 395, Madaka Anjaneyulu 2001 (1) ALJ 172 and Amar Singh (2011) 7 SCC 69 relied on). Any prejudice from the alleged Will is to be pursued in a separate Suit, not in the Appeal. Petition dismissed with no costs; point answered against the Petitioner and in favour of the Respondent.

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CMP. No.13627 of 2024 and A.S.No.419 of 2023

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated : 03.06.2025

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CORAM:

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THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP CMP. No.13627 of 2024 and A.S.No.419 of 2023

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Selvam (Alias) Selvakanth

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... Petitioner

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-Vs-

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Dr.P.Chinnaiyan

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Sholachana Devi

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Vaishnavi Priya

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Viji

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Pradeep Baskar

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Mariyayee (Died)

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Subramani

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Rajesh

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Sumathi

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1/17

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https://www.mhc.tn.gov.in/judis

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CMP. No.13627 of 2024 and A.S.No.419 of 2023

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9. Vanitha

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Sangeetha

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Baby ... Respondents

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Prayer:- Civil Miscellaneous Petition filed under Order 41 Rule 4 and Order 23 Rule 1(A) of Civil Procedure Code to allow this Petitioner/Second Appellant to transpose as Respondent in A.S.No.419 of 2023.

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A.S.No.419 of 2023:-

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Smt. Baby

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Selvam (Alias) Selvakanth ... Appellants

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-Vs-

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Chinnaiyan

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Sholachana Devi

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Vaishnavi Priya

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Viji

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Pradeep Baskar

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Mariyayee (Died)

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2/17

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https://www.mhc.tn.gov.in/judis

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CMP. No.13627 of 2024 and A.S.No.419 of 2023

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7. Subramani

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Rajesh

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Sumathi

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Vanitha

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Sangeetha (R-6 died, R-8 to R-11 are brought on record as Lrs of deceased R-6 vide Order of Court dated 14.08.2024 made in CMP.No.15515 of 2024 in A.S.No.419 of 2023)

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... Respondents

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Prayer:- Appeal Suit filed under Section 96 r/w. Order 41 Rule 1 of CPC, to set aside the Decree and Judgment dated 13.10.2022 in O.S.No.09 of 2016 passed by the learned Principal District Judge, Perambalur.

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For Petitioner : Mr.Sreedhar for Mr.Venkatakrishnan in CMP.No.13627 of 2024 For Respondents : Dr.A.E.Chelliah Senior Counsel for Mrs.Vasanthakumari Chellaih for R-1 O R D E R

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This Civil Miscellaneous Petition has been filed to allow this

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3/17

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https://www.mhc.tn.gov.in/judis

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CMP. No.13627 of 2024 and A.S.No.419 of 2023

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Petitioner/Second Appellant to transpose as Respondent in A.S.No.419 of 2023.

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The first Appellant had filed counter objecting to the Petitioner on the ground that the Appellants herein were the Defendants in the Suit in O.S.No.9 of 2016 stating that the second Appellant to transpose and adopt a position contrary to their original defence would result in an inconsistent and conflicting stand and hence there is a necessity of maintaining consistency in the stand of the parties during litigation to prevent prejudice and misuse of the judicial process.

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Also, it is the contention of the learned Counsel for the Respondent/first Appellant that the second Appellant is now intending to take a different stand contradicting his statements gave in trial before the trial Court. It is a well-settled principles of law that one should not be allowed to contradict his own statement for reaping the fruits of his own wrongs. Also, the conduct of the Petitioner/second Appellant attracts

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4/17

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https://www.mhc.tn.gov.in/judis

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CMP. No.13627 of 2024 and A.S.No.419 of 2023

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principle of estoppel. A litigant can take different stand who cannot take contrary stand in the same case. A party cannot be permitted to approbate and reprobate on the same facts and taken inconsistent shifting stands. If this transpose Petition is allowed, it would defeat the procedures and reasoning of the trial Court. Permitting transpose Petition will lead to unnecessary complications and prolong the litigation. The attempt of the second Appellant is irreparable harm and prejudice to the other parties by affecting the judicial proceedings. Therefore, the learned Counsel for the first Appellant seeks to dismiss this Petition. In support of his contention, the learned Counsel for the first Appellant relied on the following rulings:-

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(i) In the case of Jagbandhu Vs. Haris Chandra (AIR 1922 Cal.

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459) . The relevant portion reads as follows:-

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“....... if the defendant's application for transposition as plaintiffs was accepted, it would have been necessary for the added plaintiffs to discard the entire evidence on record and succeed on a case which not only was made in the Court of first instance, but absolutely contradictory to the evidence put forward.”

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(ii) In the case of Ramaswami Vs. Deivasigamani (AIR 1947 Madras

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395) . The relevant portion reads as follows:-

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5/17

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https://www.mhc.tn.gov.in/judis

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CMP. No.13627 of 2024 and A.S.No.419 of 2023

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“ But, in a case of this kind, where defendant 8 was

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setting up title adverse to the plaintiff on the one hand and defendants 1 to 7 on the other it was wholly improper to have made him a co-plaintiff and given him a decree in addition at the penultimate stage of the trial”

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(iii) In the case of Madaka Anjaneyulu Vs. Madaka Balaiah & Ors

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(2001 (1) ALJ 172).

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(iv) In the case of Suzuki Parasrampuria Suitings Private Limited

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Vs. Official Liquidator of Mahendra Petrochemicals Limited (in

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Liquidation) ((2018) 10 SCC 707) . The relevant portion is extracted

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hereunder:-

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(v) In the case of Amar Singh Vs. Union of India ((2011)7SCC 69) .

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The relevant portion reads as follows:-

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“This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to Court and invokes its writ jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions.”

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6/17

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https://www.mhc.tn.gov.in/judis

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Point for consideration:-

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CMP. No.13627 of 2024 and A.S.No.419 of 2023

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Whether the Second Appellant is to be transpose

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as a Respondent in the Appeal?

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Heard the learned Counsel for the Petitioner and the learned

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Counsel for the first Respondent.

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Perused the records.

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The Appeal is filed by the Defendants 2 and 3 in O.S.No.9 of 2016

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on the file of the learned Principal District Judge, Perambalur. The Plaintiffs are the Respondents. CMP.No.13627 of 2024 in A.S.No.419 of

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2023 is filed by the Defendant-3 in O.S.No.9 of 2016 on the file of the learned Principal District Judge seeking to transpose the second Appellant as Respondent in the Appeal on the ground that after the decree, the second Defendant claimed that a Will had been executed by the father of the Defendants 2 and 3 in favour of the second Defendant regarding the Suit properties which she had not disclosed at the time of trial. Therefore, he seeks to be transposed as Respondent in the Appeal. The Respondent/first

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7/17

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https://www.mhc.tn.gov.in/judis

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CMP. No.13627 of 2024 and A.S.No.419 of 2023

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Appellant filed a counter objecting to the Petition to transpose on the ground that the second Appellant cannot be permitted to make an inconsistent stand before the trial Court and the Appellate Court stating that the party to proceedings should be consistent throughout all stages in the said cases in all stages. Also, the learned Counsel for the Respondent had relied on rulings in the case of Jagbandhu Vs. Haris Chandra (AIR 1922 Cal. 459); in the case of Ramaswami Vs. Deivasigamani (AIR 1947 Madras 395); in the case of Madaka Anjaneyulu Vs. Madaka Balaiah & Ors (2001 (1) ALJ 172); in the case of Suzuki Parasrampuria Suitings Private Limited Vs. Official Liquidator of Mahendra Petrochemicals Limited (in Liquidation) ((2018) 10 SCC 707); and in the case of Amar Singh Vs. Union of India ((2011)7SCC 69) in which the transpose Petitions were allowed in cases where there is a common claim by all the parties either as Plaintiffs or as Defendants. Here, the Petition is filed by the third Defendant before the trial Court. The second and third Defendant had filed a written statement. The Defendants 1 to 3 in the Suit are elder brother, wife and children of the Plaintiff. The third Defendant/Petitioner herein had filed the written 8/17

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https://www.mhc.tn.gov.in/judis

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CMP. No.13627 of 2024 and A.S.No.419 of 2023

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statement disputing the claim of the Plaintiff regarding the Suit properties which is also the claim of the Defendants 1 to 3. Petitioners 1 to 3 had filed a written statement, which was adopted by Defendants 1 and 2, with a specific claim that the mother of the Defendants 2 and 3/Rajammal, purchased the property and that it is her self-acquired property. In the Judgment, the learned Principal District Judge had held that Ex.B-3, Ex.B-5, Ex.B-7 and Ex.B-8 had proved that the husband of the first Defendant and father of the Defendants 2 and 3 had independent income and the sale deed in Ex.A-4, Ex.A-6, Ex.A-7 and Ex.A-8 cannot be termed as Suit properties purchased in the name of Mechale and Rajammal, out of the income from Suit Item Nos.1 and 2. Therefore, based on the appreciation of the evidence, the learned Principal District Judge had granted a preliminary decree for partition of Item Nos.1 and 2 alone to the Plaintiff and dismissed the Suit regarding Item Nos. 3 to 9. Therefore, Defendants 2 and 3 have now come in Appeal seeking to set aside the Judgment regarding the share allotted to the Plaintiff. Pending Appeal, if the second Appellant is permitted to give a contrary claim, as pointed out in the counter of the first Appellant, the same 9/17

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https://www.mhc.tn.gov.in/judis

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CMP. No.13627 of 2024 and A.S.No.419 of 2023

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cannot be permitted in the Appeal which is the continuation of the proceeding in O.S.No.9 of 2016. If that is allowed, the entire evidence let out by the Defendants in O.S.No.9 of 2016 has to be set aside which causes confusion as stated by the Respondent in the counter. The conduct of second Appellant attracts the principle of estoppel taking an inconsistent stand which cannot be accepted in the light of the principle of estoppel. The conduct of the Petitioner seeking to transpose himself as Respondent cannot be permitted in the light of the rulings in the case of Suzuki Parasrampuria

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Suitings Private Limited Vs. Official Liquidator of Mahendra Petrochemicals Limited (in Liquidation) ((2018) 10 SCC 707:(2018) 12

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SCR 906) . The relevant portion is extracted hereunder:-

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“A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands. The untenability of an inconsistent stand in the same case was considered in Amar Singh Vs. Union of India, (2011) 7 SCC 69, observing as follows:-

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50. This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to Court and invoke its writ jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions.

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10/17

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https://www.mhc.tn.gov.in/judis

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CMP. No.13627 of 2024 and A.S.No.419 of 2023

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13. A similar view was taken in Joint Action Committee of Air Line Pilots' Assn. Of India Vs. DG of Civil Aviation, (2011) 5 SCC 435, observing:

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12. The doctrine of election is based on the rule of estoppel – the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is rule in equity........... Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily.”

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As pointed out in the rulings this Petition, if allowed causes

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confusion. Therefore, this Petition is dismissed as having no merits.

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The rulings cited in the case of Suzuki Parasrampuria Suitings

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Private Limited Vs. Official Liquidator of Mahendra Petrochemicals Limited (in Liquidation) ((2018) 10 SCC 707:(2018) 12 SCR 906) by the learned Counsel for the Petitioner are not applicable to the facts of this case as the facts are in different context. Here, the Petitioner herein was the contesting Defendant before the trial Court. He had filed written statement which was adopted by the first and second Defendant/mother and sister of this Petitioner. Based on the evidence let in by this Petitioner and the

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11/17

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https://www.mhc.tn.gov.in/judis

¶114

CMP. No.13627 of 2024 and A.S.No.419 of 2023

¶115

documents marked by this Petitioner, the learned Principal District Judge had dismissed the Suit for partition filed by the first Respondent in this Appeal as Plaintiff before the trial Court regarding the Suit properties Nos.3 to 9. The plea of the petitioner that the claim of the sister that a Will had been executed by their mother in favour of the sister of the Petitioner and which was not disclosed by her during trial, will not affect in anyway the appreciation of evidence. In this Appeal, the said Will had not at all been placed before the trial Court. If at all, the Petitioner is prejudiced, he has to seek remedy in a separate Suit and not in this Appeal as the said Will was not at all marked during trial before the trial Court. Therefore, the Point for consideration is answered against the Petitioner and in favour of the Respondent/first Defendant.

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In the result, this Civil Miscellaneous Petition is dismissed. No costs.

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03.06.2025

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dh Index : Yes/No 12/17

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https://www.mhc.tn.gov.in/judis

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CMP. No.13627 of 2024 and A.S.No.419 of 2023

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Speaking/Non-speaking order

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The Principal District Judge, Perambalur.

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The Section Officer, V.R.Section, High Court, Madras.

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SATHI KUMAR SUKUMARA KURUP, J.,

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Pre-delivery Order made in C.M.P.No.13627 of 2024

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13/17

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https://www.mhc.tn.gov.in/judis

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CMP. No.13627 of 2024 and A.S.No.419 of 2023

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in A.S.No.419 of 2023

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03.06.2025

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C.M.P.No.13627 of 2024 and A.S.No.419 of 2023

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SATHI KUMAR SUKUMARA KURUP, J.

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This case is listed today under the caption “for being mentioned” at the instance of the learned Counsel for the Respondent in the C.M.P.

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Learned Counsel for the Respondent in the C.M.P would submit

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that in the Order copy dated 03.06.2025 in Page 3 of the Order in the Appearance portion, the name of the learned Counsels had been wrongly mentioned.

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