IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:21.03.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1481 of 2010 and M.P.No.1 of 2010 T.Balan .. Appellant/Plaintiff vs. 1. P.Mani 2. J.Muniammal 3. D.Koilraj .. Respondents/Defendants This second appeal is focussed as against the judgment and decree in A.S.No.504 of 2006 dated 20.11.2009 passed by the Additional District Judge, II Fast Track Court, Chennai confirming the judgment and decree in O.S.No.3137 of 1996 dated 14.03.2006 by the learned XI Assistant City Civil Judge, Chennai. For Appellant : Mr.A.Babu For Respondents : Mr.R.Ganesan for R1 J U D G M E N T This second appeal is focussed by the original plaintiff, animadverting upon the judgement and decree dated 20.11.2009 passed in A.S.No.504 of 2006 by the Additional District Judge, II Fast Track Court, Chennai, confirming the judgment and decree of the learned XI Assistant City Civil Judge, Chennai in O.S.No.3137 of 1996. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. A recapitulation and re'sume' of relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The plaintiff- Balan filed the suit seeking the following reliefs impleading initially only the defendants Durai- his brother and Mani - the purchaser of the property from Durai: "(a) To pass a preliminary decree for partition of plaintiff's ½ share in the suit property; https://hcservices.ecourts.gov.in/hcservices/ (b) To pass a final decree in terms of the preliminary decree and to deliver separate possession of the plaintiff's ½ share; and (c) for costs. (Extracted as such) (b) Separate written statements were filed by D1 and D2. (c) Whereupon the trial Court framed the issues. (d) During trial, the plaintiff-Balan examined himself as P.W.1 and Exs.A1 to A7 were marked. On the side of the defendants, D.W.1 and D.W.1 were examined and Exs.B1 to B10 were marked. (e) Ultimately the trial Court dismissed the suit, as against which appeal A.S.No.504 of 2006 was filed. Whereupon, the first appellate Court remanded the matter back to the trial Court and thereafter, the trial Court impleaded Muniammal - one of the sisters of plaintiff and D1. Thereafter, the trial Court granted one fourth in favour of the plaintiff and three fourth share in favour of D1. Whereupon the plaintiff preferred appeal for nothing but to be dismissed confirming the judgment and decree of the trial Court. 3. Being aggrieved by and dissatisfied with the judgments and decrees of both the Courts below, this Second Appeal is focussed on various grounds and also suggesting the following substantial questions of law: "(a) Whether the interpretation recitals of settlement deed given by the Lower Appellate court as against the intention of the parties is sustainable in law? (b) Whether amendment of pleading is barred in the appellate stage when the plaintiff has had no chance for amendment before the trial court? (c) Whether failure of the plaintiff to amend the prayer is bar for him to seek amendment of pleading the appellate stage?" (extracted as such) 4. After hearing both sides, I have been of the considered view that the following substantial questions of law should be framed: 1. Whether the plaint itself was properly drafted and the necessary parties were added? and whether both the Courts below applied the correct proposition of Hindu law in deciding the lis https://hcservices.ecourts.gov.in/hcservices/ and also in adjudging the validity of Ex.A1 and Ex.B2 and also the respective rights of the parties? 2. Whether there is any perversity or illegality in the judgments and decrees rendered by both the Courts below? 5. At the outset itself, I would like to detail and delineate the relevant facts which are admitted or atleast undeniable. One Kandan had three sons, namely Velu, Thangavelu and Muthuvelu. The suit property originally belonged to Kandan. The said Velu and Muthuvelu died issueless. Thangavelu had two sons, namely Durai/D1 and Balan/plaintiff and also four daughters, namely Violet, Navaneedam, Saroja and Muniammal. Thangavelu's wife was Rajambal. The fact remains that even before the death of Velu and Muthuvelu, the said Durai/D1 and Balan were born to Thangavelu. The plaint proceeded on the line that Thangavelu during his life time executed Ex.A1 the settlement deed in favour of his wife Rajambal assuming as though the said property absolutely belonged to him even though in the deed itself it is found stated that the property came into his hands as ancestral property. There is also a clause in Ex.A1 that after the death of the settlee, namely Rajambal, the property should devolve upon the male descendants, which means that Durai and Balan should take the property absolutely after the death of Rajambal. No doubt, earlier in the same deed there is a clause to the effect that Rajambal should take the property absolutely, but subsequent clause is to the effect that property should devolve upon Durai and Balan. However, it so happened that the said Rajambal executed Ex.B2- the settlement deed dated 23.05.1983, settling half share in the suit property in favour of her elder son Durai leaving the remaining half share as such. The said Thangavelu died in the year 1961 and Rajambal died in the year 1992. D2 purchased the said half share of D1 which he got under Ex.B2, as per Ex.B1 dated 20.02.1996. 6. The learned counsel for the plaintiff would submit that Rajambal had no right to settle the property in favour of D1, as she was only having life estate. Whereas, the learned counsel for D1 and D2 would submit that Ex.A1 - the settlement deed of the year 1960 conferred absolute right to Rajambal, whereupon Rajambal had the right to settle half share in favour of D1 and that was subsequently purchased by D2 from D1 validly for valuable consideration and that he was a bona fide purchaser of the property. 7. The Courts below proceeded on the footing as though the settlement deed executed by Thangavelu in favour of Rajambal was valid in toto, without applying the correct proposition of Hindu law. For that matter, the plaintiff also has not cited the correct proposition of Hindu law governing co-parcenary properties. https://hcservices.ecourts.gov.in/hcservices/ Consequent upon the death of Velu and Muthuvelu, the said Thangavelu and his two sons Durai and Balan constituted a co-parcenary and each of them had one third share in the suit property, over which axiomatically and obviously there could be no second thought as per the Hindu law governing co-parcernary properties. 8. The learned counsel for the plaintiff, would draw the attention of this Court to the recital in Ex.A1 to the effect that Thangavelu itself admitted that the property happened to be the ancestral property over which there is no quarrel. When such is the position, Thangavelu had only one third right. The learned counsel for the plaintiff would even go to the extent of contending that even Thangavelu had no right to execute the settlement in favour of his wife in view of the decision of this Court reported in 2009(6) CTC 197 [Kannamal and three others v. Vembana Gounder and five others]. 9. No doubt, the said judgment of this Court is relating to the gift settlement executed by one co-parcenar in favour of a third party. But the question still remains as to what would be the validity of a gift settlement, which would be executed by a male in favour of his wife who is always entitled to maintenance and I leave the question open to be decided. But both the Courts below never applied their mind on this line. A question might arise involving the maxim : Judicis est judicare secundum allegata et probata – It is the duty of a Judge to decide according to the facts alleged and proved. 10. Since the plaintiff has not raised the Hindu law proposition relating to co-parecenary, both the Courts below did not look into it. Had the Courts proceeded on the line that Rajambal was the absolute owner of the suit property and never relied upon Ex.A1, then the matter would have been slightly different in view of the aforesaid proposition. But the bed rock of the decision of the Courts below are based on Ex.A1. The clause in Ex.A1 would recite that after the death of Rajambal the suit property should devolve upon the plaintiff and D1 alone. There alone the whole difficulty comes. When the Courts below held that after the death of Rajambal the male heirs only should take the remaining half share un-alienated by her, then the core question arises as to how Rajambal was justified in already alienating the half share as per Ex.B2. Hence necessarily in this case, the validity of Ex.A1 and consequently the validity of Ex.B2 and ultimately Ex.B1 should be adjudicated by applying the correct proposition of Hindu law. The fact remains that Thangavelu as well as Rajambal died after the commencement of the Hindu Succession Act 1956. In such a case, the female heirs' right to the property cannot be ignored. But by applying a clause in Ex.A1, both the Courts below misdirected themselves and allotted the shares. https://hcservices.ecourts.gov.in/hcservices/ 11. The learned counsel for the defendants 1 and 2 would appropriately and appositely highlight that the female heirs were not at all added and some of the daughters of Thangavelu died and their heirs are alive. In fact, both sides in unison would state that Muniammal, one of the daughters of Thangavelu filed a separate suit O.S.No.3205 of 1999 for partition even while the present earlier suit O.S.No.3137 of 1996, over which this Second Appeal has arisen, was pending However, it seems she failed to proceed further. Whereupon she was added as D3 in the suit O.S.No.3137 of 1996, but the other daughters or their legal heirs have not been added. As such the matter proceeded on a wrong direction and a murky situation ultimately resulted, which both the Courts below failed to take note. The ratiocination adhered to by them is far from satisfactory and a mere perusal of it would reveal the same. As such without proper pleadings and without applying the proper law and without adding the necessary parties, the proceedings proceeded and ended in passing the judgments which are liable to be set aside. 12. Accordingly, the substantial question of law No.1 is decided to the effect that the plaint itself was not properly drafted and the necessary parties were not added and both the Courts below did not apply the correct proposition of Hindu law in deciding the lis and also in adjudging the validity of Ex.A1 and Ex.B2 and also the respective rights of the parties. 13. The substantial question of law No.2 is decided to the effect that since both the Courts below failed to take into account the aforesaid points discussed supra, interference in the Second Appeal is warranted. 14. This Court even thought of remanding the matter back to the lower Court for amending the plaint, the written statement and also adding new parties and that would be amounting to afresh bringing in a new suit which the plaintiff is always entitled to institute afresh, by setting out proper pleadings and adding necessary parties and citing the correct proposition of law because this is a matter for partition and so far the parties have not got their shares properly divided. As such the cause of action still persists. Hence in this view of the matter, while dismissing the Second Appeal, liberty is given by this Court to the parties concerned to file a fresh suit on the aforesaid line and get the matter adjudicated. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ Gms To 1. The Additional District Judge, II Fast Track Court, Chennai 2.The XI Assistant City Civil Judge, Chennai. 1 cc to Mr.R.Ganesan, Advocate, Sr.No.19779 1 cc to Mr.A.Babu, Advocate, Sr.No.20175 S.A.No.1481 of 2010 BK {CO} TP/29.4.2011. https://hcservices.ecourts.gov.in/hcservices/