C. KRISHNAN AND ORS.versusKISTAMMAL AND ORS.

~
                                    [2008] 13 S.C.R. 529
     -./


                                 C. KRISHNAN AND ORS.                           A
                                             v.
                                 KISTAMfv1AL AND ORS.
                             (Civil Appeal No.5642 of 2008)

    ~· f
                                 SEPTEMBER 15, 2008
                                                                                B
                   [OR. ARIJIT PASAYAT AND DR. MU'.·<UNDAKAM
                                      SHARMA, JJ.]

                    Hindu Law:
                     Succession - Division in family - Share in property ..;..  c
               High Court setting aside decree and judgments of courts be-
               low and dismissing the suit in respect of Item Nos. 1 to 9 of
               Suit properties - Correctness of - Held: Respondents filed
               second appeal confining their claim to Item Nos. 1 to 9 of the
     _....~-
               suit property only - However, with regard to Item No. 10 of the D
               suit property, High Court on the one hand confirmed the de-
               cree passed by trial court and on the other set aside the de-
               cree and judgments of courts below - Thus, order of the High
               Court is not clear - Hence, impugned judgment of High Court
               is modified and decree passed by trial Court restored in re- E
               spect of Item No. 10 of the suit property.
                     The issue arose for determination in this appeal was
               as to whether the High Court was right in setting aside the
               decree and judgments of the courts below in the second
               appeal filed before it against the judgment of first appellate   F
               court, when the appeal was preferred against the judgment
               of first appellate court in respect of Item Nos.1 to 9 of the
               suit property only and not in respect of Item No.10.
                    Disposing of the appeal, the Court                          G
                     HELD: 1.1 The respondents filed Second Appeal
'   --.        where relief claimed was confined to plaint property Item
               Nos.1 to 9, Which was allowed by the High Court. (Para -
               5) [532-G]
                                         529                                    H
    530      SUPREME COURT REPORTS                  [2008] 13 S.C.R.


A       1.2 With regard to Item No.10 the respondents did
  not file appeal and the High Court should have affirmed
  the decree granted by the trial Court. With regard to Item
  No.10 the stand is very fair. But the stand taken to the ef-
  fect that the High Court has affirmed the decree granted
B by the trial Court with regard to Item No.10 does not ap-              1~
  pear to be so clear. It has been stated that so far as Item
  No.10 of the suit property is concerned the suit was de-
  creed granting relief of declaration and injunction as prayed
  for. While so observing, other part of the conclusions of
c the High Court that the appeal was allowed setting aside
  the decree and judgments of courts below regarding the
  declaration and injunction granted in respect of Item Nos.
  1 to 9 of the suit properties is not clear. It is, therefore, di-
  rected that the decree passed by the trial Court is to be
  restored. The impugned judgment of the High Court is
0
  modified to that extent. (Para - 5) [532-H, 533-A-B]                   ,,.-,
         CIVILAPPELLATE JURISDCTION: Civil Appeal No. 5642
    of 2008
       From the Final Judgment and Order dated 6.9.2006 of
E the High Court of Judicature at Madras in S.A. No. 249/1995
         V. Prabhakar, Ramjee Prasad and Revathy Raghavan for
    the Appellants.
          G. Umapathy and Rakesh K. Sharma for the Respondents.
F
          The Judgment of the Court was delivered by
          Dr. ARIJIT PASAYAT, J 1. Leave granted.
        2. Challenge in this appeal is to the judgment of a learned
G Single Judge of the Madras High Court disposing of Second
  Appeal. The only grievance in the appeal is that the High Court
  in the appeal could not have set aside the decree of the trial
  Court so far as it relates to the partial relief granted in the suit     y
  filed by the plaintiffs-appellants when there was no appeal so
  far as said relief is concerned.
H
           C. KRISHNAN AND ORS. v. KISTAMMAL                  531
             AND ORS. [DR. ARIJIT PASAYAT, J]

      3. Learned counsel for the appellants pointed out to the      A
following observations of the High Court.
     "In the light of the above discussion, it is to be held that
     there was division in the family and Munusamy Reddy and
     Ramu Reddy separated themselves from other
     coparceners at the time of their death and therefore the 6
     shares so obtained by them under the division, certainly
     would pass on to their heirs, by succession and not by
     survivorship upon the surviving· brothers. The deceased
     first plaintiff, suppressing all the above facts, misleading
     the Court, obtained a decree which is liable to be set C
     aside.
     In this case, whether Ex.A6 represents the correct date of
    death of Munusamy or not may not have much significance,
     in view of my findings supra. The first Appellate Court has
                                                                     0
     held accepting the oral evidence of the parties and drawing
     presumption under law that Ex.A.6 is true and that will
     prove the date of death of Munusamy Reddy as
    25.11.1935. Assuming it is correct, that alone will not give
    any absolute right over the suit properties to the deceased
    first plaintiff, to be inherited by other plaintiffs vis., the E
    respondents herein. Therefore, it is unnecessary for us to
    dwell upon Ex.A.6 to find out its validity or correctness as
    the case may be. For these reasons, the lower Appellate
    Court is not justified in decreeing the suit when the
    deceased first plaintiff Chengappa Reddy is only one of F
    the four brothers, as if he had inherited the shares of two
    brothers viz., Munusamy Reddy and Ramu Reddy, excluding
    the others and ignoring the division of coparceners, as
    established. Therefore, it is to be held as rightly put it in
    substantial question No.2, the lower Appellate Court fell G
    into an error, which is to be rectified by allowing this appeal,
    answering these two substantial questions of law
    accordingly.
     The result therefore is the appeal is allowed setting aside
                                                                    H
    ti32       SUPREME COURT REPORTS                  [2008] 13 S.C.R.


A          the decree and judgments of both the courts below,
           regarding the declaration and injunction granted in respect
           of items No.1 to 9 of the suit properties. Thus, the suit in
           O.S. No.593 of 1981 on the file of the District Munsif,
           Ponneri is dismissed, in respect of items No.1 to 9 of the
8          suit properties. So far as the item No.10 of the suit
           properties is concerned, the suit is decreed, granting the
           reliefs of declaration and injunction as prayed for."
        4. In the counter-affidavit filed by the respondents it has
    be=n stated as follows:
c
           "Aggrieved by the above judgment, the answering
           respondent filed the Second Appeal No.249 of 1995
           confirming the findings recorded by the lstA,:>pellate Court
           only in respect of Items 1 to 9 of the plaint. The Hon'ble
           High Court after framing the questions of law came to a
           correct conclusion that the lower Appellate Court fell into
           error in ignoring the division in the family. The High Court
           further held that the shares so obtained under the division
           would pass on to their heirs by succession and not
           survivorship upon the surviving brothers. The Hon'ble High
E          Court while allowing the appeal filed by the answering
           respondents has set aside the decree of the 1st Appellate
           Court with regard to Items 1 to 9 of the plaint schedule
           properties. The High Court accordingly confirmed the
           decree granted by the trial Court with regard to items 1 to
           9 and with regard to item 10 of the plaint schedule
           properties, it confirmed the decree passed by the trial
           Court."
             5. It is accepted that the respondents filed Second Ap-
    peal where relief claimed was confined to plaint property Item
u
    Nos 1 to 9, which was allowed by the High Court. With regard
    to Item No.10 the respondents did not file appeal and the High
    Court should have affirmed the decree granted by the trial Court.
    'Nit." regard to item No.10 the stand is very fair. But the stand
    !;.,, "'r to the effect that the High Cour: '.1as affirmed the decree
                  C. KRISHNAN AND ORS. v. KISTAMMAL                   533
                    AND ORS. [DR. ARIJIT PASAYAT, J]

       granted by the trial Court with regard to Item No.10 does not         A
       appear to be so clear. It has been stated that so far as Item
       No.10 of the suit property is concerned the suit was decreed
       granting relief of declaration and injunction as prayed for. While
       so observing, other part of the conclusions of the High Court
->-J   that the appeal was allowed setting aside the decree and judg-        8
       ments of courts below regarding the declaration and injunction
       granted in respect of Item Nos. 1 to 9 of the suit properties is
       not clear. It is, therefore, directed that the decree passed by the
       trial Court is to be restored. The impugned judgment of the High
       Court is modified to the aforesaid extent.                            c
            6. The appeal is disposed of without any order as to costs.

       S.K.S.                                      Appeal disposed of.