IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.04.2011 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.599 of 2007 and C.M.P.No.1791 of 2007 Kirthiseelan .. Appellant/1st Defendant vs. 1. Abhishekavalli .. Respondent/Plaintiff 2. Loganathan 3. Kumudavali 4. Sundari .. Respondents/ Defendants 2 to 4 This Second Appeal is focussed as against the judgment and decree in A.S.No.33 of 1993 on the file of the Principal Subordinate Judge, Tindivanam dated 18.09.2000 in confirming the judgment and decree in O.S.No.270 of 1986 on the file of the Addl. District Munsif Court, Tindivanam dated 31.07.1992. For appellant : Mr.V.Raghavachari For Respondents: Mr.A.K.Kumarasamy JUDGMENT This Second appeal is focussed by the first defendant animadverting upon the judgment and decree dated 18.09.2000 passed in A.S.No.33 of 1993 by the Principal Subordinate Judge, Tindivanam, confirming the judgment and decree of the Additonal District Munsif Court, Tindivanam in O.S.No.270 of 1986. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The plaintiff filed the suit for partition, which was resisted by D1, whereas, the other defendants submitted to decree. https://hcservices.ecourts.gov.in/hcservices/ (b) Whereupon issues were framed by the trial Court. (d) The plaintiff-Abhishekavalli examined herself as P.W.1 and Exs.A1 and A2 were marked. The first defendant- Kirthiseelan examined himself as D.W.1 and Exs.B1 to B4 were marked. 3. Ultimately the trial Court decreed the suit allotting 1/15th share in favour of the plaintiff, as against which D1 alone preferred appeal, for nothing but to be dismissed by the appellate Court confirming the judgment and decree of the trial Court. 4. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been focussed by the first defendant on various grounds and also suggesting the following substantial questions of law: "1. Whether the courts below are right in decreeing the suit in the absence of proper pleading and evidence? 2. Whether the courts below are right in decreeing the suit, when the plaintiff had not proved her case on the basis of Ex.A1? 3. Whether the findings of the courts below are not against the admission of the plaintiff?" (extracted as such) 5. At the outset, I fumigate my mind with the following decision of the Hon'ble Apex Court: (2011) 1 SCC 673 [VIJAY KUMAR TALWAR vs.COMMISSIONER OF INCOME TAX, DELHI]; certain excerpts from it would run thus: "19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. 23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles https://hcservices.ecourts.gov.in/hcservices/ have not been applied in appreciating the evidence, or when the evidence has been misread." 6. A mere poring over and perusal of those excerpts including the whole judgment would reveal that unless there is any perversity or illegality in the findings of the Courts below or that the Courts below have failed to apply the correct law, the question of interference in the Second Appeal does not arise. 7. As such it has to be viewed as to whether any substantial question of law is involved in the facts and circumstances of this case. 8. The germane facts would run thus: One Govindaraj Chettiar had two sons and three daughters. He died during the year 1980 leaving behind his widow and his five children. Subsequently, his widow also died during the year 1984, whereupon one of the daughters of Govindaraj Chettiar filed the suit seeking partition of her one fifth share in the suit properties treating the suit properties as the self acquired properties of her deceased father Govindaraj Chettiar. 9. Whereas, the first defendant contended that the suit properties are not the self acquired properties of Govindaraj Chettiar. He would place reliance on the Will, which was not produced before the Court, allegedly executed by Govindaraj Chettiar's father Kumarasamy Chettiar. As such, according to his theory, the said Kumarasamy Chettiar executed the Will, which was not produced before the Court or proved before the Court granting life estate in favour of Govindaraj Chettiar and thereafter absolute interest in favour of the two sons of Govindaraj Chettiar, namely D1 and D2. 10. Both the Courts below appropriately and correctly, appositely and legally discarded the plea based on such alleged Will executed by Kumarasamy Chettiar. There was no such Will produced before the Court at all. There are concurrent findings in that regard by the Courts below. The plaintiff also relied upon Ex.A1 - the Will executed by Govindaraj Chettiar in favour of his widow and even that Will was not proved by her and she has not filed any appeal or Second Appeal as against the trial Court's verdict. As of now, the findings of both the Courts below are to the effect that the suit properties happened to be the co-parcenary properties of Govindaraj Chettiar and his two sons. Since Govindaraj Chettiar died during the year 1980, his one third share, devolved upon his legal heirs, so to say the class I heirs under the Hindu Succession Act and accordingly, his two sons and three daughters were entitled to one fifth share each in that one third share of Govindaraj Chettiar. Even though the widow survived Govindaraj she subsequently died. In such a case, the five https://hcservices.ecourts.gov.in/hcservices/ children of Govindaraj Chettiar alone would be entitled to his one third share and to that effect both the Courts below gave concurrent findings and absolutely there is no iota or shred of substantial question of law is involved in this matter. 11. In support of the contention of D1, absolutely there is no pint of miniscule extent of evidence. In view of the findings of both the Courts below in treating the properties as co-parcenary properties only, D1 the appellant herein, stood to benefit; whereas, the plaintiff who contended that the property should be treated as self acquired properties of Govindaraj Chettiar, was turned out by the Courts below and ultimately she got only a pittance of 1/15th share in the suit properties and she is satisfied with that. The plaintiff has given up her contention based on Ex.A1 also. 12. Hence in such a case, I could see no rhyme or reason on the part of D1 in filing this Second Appeal and as correctly pointed out by the learned counsel for the plaintiff, D1 is trying to drag on the proceedings so as to postpone any benefit that might accrue in favour of D1 in the final decree proceedings. Hence, I could see no substantial question of law much less any substantial question of law is involved in this matter. Accordingly, the Second Appeal is dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed. gms Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Principal Subordinate Judge, Tindivanam. 2. The Addl. District Munsif, Tindivanam. Copy to: The Section Officer, VR Section, High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/ + 1 cc to M/s. V. Raghavachari, Advocate SR No.27701 + 1 cc to Mr. A.K. Kumarasamy, Advocate SR No.27718 VD(CO) SR/9.6.2011 S.A.No.599 of 2007 https://hcservices.ecourts.gov.in/hcservices/