{"id":174768,"date":"2004-03-04T00:00:00","date_gmt":"2004-03-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kuruvammal-sheela-devi-vs-m-moses-on-4-march-2004"},"modified":"2015-04-09T04:24:42","modified_gmt":"2015-04-08T22:54:42","slug":"kuruvammal-sheela-devi-vs-m-moses-on-4-march-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kuruvammal-sheela-devi-vs-m-moses-on-4-march-2004","title":{"rendered":"Kuruvammal @ Sheela Devi vs M.Moses on 4 March, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
Kuruvammal @ Sheela Devi vs M.Moses on 4 March, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 04\/03\/2004\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\n\nSECOND APPEAL No.1787 of 1991\n\nKuruvammal @ Sheela Devi                               .. Appellant\n\n-Vs-\n\n1. M.Moses\n2. M.Solemon (died)\n3. M.Sargunam (died)\n4. Rathinamani (died)\n5. State Represented\n    by the Collector\n    Tirunelveli\n6. The Tahsildar\n    Kovilpatti\n7. The Superintendent of Police\n    Velloor, North Arcot District.\n8. Jebamani\n(8th respondent is brought on record as\nLR of the deceased 2nd respondent vide\nas per order of Court dt.9.4.03 made\nin CMPs.17528 to 17536\/02)\n9. Seeniammal\n10.Masilamani\n11.Madathi Ammal\n(RR9 to 11 brought on record as LRs\n of the deceased 3rd respondent vide\nas per order of Court dt.9.4.03 in\nCMPs.17528 to 17536\/02)\n12.Kamalam\n13.Navamani\n14.Esther\n(RR12 to 14 brought on record as LRs\nof the deceased 4th respondent vide as\nper order of Court dt.9.4.03 in CMPs\n17528 to 17536 of 2002)                         .. Respondents\n\n        This second appeal is preferred under Sec.100 of  the  Code  of  Civil\nProcedure  against  the judgment and decree dated 10.4.91 in A.S.No.35 of 1988\non the file of the Sub Court, Tuticorin, modifying  the  judgment  and  decree\ndated  29.1.1988  in  O.S.No.390  of  1985  on the file of the District Munsif\nCourt, Kovilpatti.\n\n!For Appellant :  Mr.R.S.Ramanathan\n\n^For Respondents :  Mr.R.Thirugnanam\n                for RR1 to 4, 8, 9 to 11 and 12 to 14\n\n                Mr.S.Sathia Murthy\n                Special Government Pleader (CS)\n                for RR5 to 7\n\n:JUDGMENT\n<\/pre>\n
        The first defendant  is  the  appellant  herein,  who  challenges  the
\njudgment of the first appellate Court, wherein the judgment of the trial Court
\nin a suit for declaratory relief and consequential injunction was modified.\n<\/p>\n
        2.   The  plaintiffs  sought for declaration that the plaintiffs being
\nthe kindreds of the deceased Vedanayagam, were also his legal heirs and also a
\ndeclaration  that  the  order  of  the  Tahsildar,   Kovilpatti,   passed   in
\nPa.Mu.23259\/84 dated 28.2.1985 certifying that the first defendant is the sole
\nlegal   heir   of  the  deceased  Vedanayagam,  is  null  and  void,  and  for
\nconsequential  permanent  injunction  restraining  the  first  defendant  from
\nreceiving  full  amounts  of  family  benefit  fund, gratuity, family pension,
\nprovident fund or other amounts due  to  the  deceased  Vedanayagam  from  the
\ndefendants  2  and  4  and also restraining the defendants 2 and 4 from paying
\nsuch amounts to the first defendant, alleging that the plaintiffs 1 to  3  and
\none  Vedanayagam were brothers, while the 4th plaintiff was their sister; that
\nthey were all Christians; that Vedanayagam was working as Police Constable  at
\nVanniyambadi; that he was married to the first defendant; that she eloped with
\none  Swaminathan; that she filed a petition in M.C.No.55\/79 for maintenance on
\nthe file of the Sub Divisional Magistrate Court, Kovilpatti, and the same  was
\ndismissed;  that on appeal, it was set aside by the first appellate Court, and
\na maintenance of Rs.75\/- per month was awarded to her; that on revision before
\nthe High Court, the quantum of maintenance was reduced to Rs.50\/-  per  month;
\nthat  Vedanayagam died in a road accident on 7.6.1984; that he died intestate;
\nthat all the plaintiffs were legal heirs of Vedanayagam along with  the  first
\ndefendant;  that  the  plaintiffs  were  entitled to one half share in all the
\nproperties and assets of the deceased;  that  the  first  defendant  was  also
\nentitled  to  one  half share in the same; that the first defendant applied to
\nthe Tahsildar, Kovilpatti, for legal  heir  certificate;  that  the  Tahsildar
\ngranted  the same, certifying that the first defendant alone is the legal heir
\nof Vedanayagam, which is against law and facts; that Vedanayagam nominated the
\nplaintiffs as his heirs for the family benefit  fund,  etc.;  that  the  first
\ndefendant  was  attempting  to  grab  all the amounts under the family benefit
\nfunds, gratuity fund, provident fund, etc, and hence, there arose a  necessity
\nfor the plaintiffs to file the suit.\n<\/p>\n
        3.   The  suit  was  contested  by  the  first  defendant stating that
\nVedanayagam died as a Hindu, and hence, nobody else was  his  heir,  excepting
\nthe first defendant; that the plaintiffs were not kindreds; that they were not
\nentitled to half share in the properties; that Vedanayagam died leaving behind
\nhim  his widow only namely the first defendant; that the first defendant alone
\nwas to be determined as the direct lineal descent to get all such funds;  that
\nthe  plaintiffs  were  not  the  heirs  of  Vedanayagam;  that after carefully
\nscrutinising the laws and regulations, the Tahsildar has issued the legal heir
\ncertificate in favour of the first defendant; that in the appeal made  by  the
\nplaintifs before the District Collector, Kovilpatti, they have stated that the
\ndeceased  Vedanayagam  did  not  make  any nomination under the family benefit
\nscheme, and hence, the suit was to be dismissed.\n<\/p>\n
        4.  The defendants 2 to 4 contested the suit by  stating  that  during
\nthe  life  time  of  Vedanayagam,  he made a nomination in favour of the first
\ndefendant to get the family benefit fund; that as per  the  Rules,  the  first
\ndefendant  was  entitled  to  get  the  funds; that the legal heir certificate
\nissued by the third defendant, was valid in  law,  and  hence,  the  suit  was
\nliable to be dismissed.\n<\/p>\n
        5.   The  trial  Court framed the necessary issues, tried the suit and
\ndismissed the same.  On appeal by the plaintiffs before  the  first  appellate
\nforum, there was a modification of the findings of the trial Court, granting a
\nrelief  only  to an extent of half share in the family benefit fund, provident
\nfund and gratuity as asked for in the plaint.\n<\/p>\n
        6.  At the time of admission, the following substantial  questions  of
\nlaw were formulated by this Court:\n<\/p>\n
(1)  Whether  the  respondents  1 to 4 are entitled to claim half share in the
\namounts payable under the Provident Fund Act, Gratuity, Family Benefit Fund on
\nthe ground of the deceased legal heirs?\n<\/p>\n
(2) Whether the lower appellate Court is right in holding  that  the  deceased
\ndied as a Christian in the absence of any proof to that effect?\n<\/p>\n
        7.   This  Court  heard the learned Counsel for the appellant and also
\nthe learned Counsel for the respondents\/plaintiffs  and  the  learned  Special
\nGovernment Pleader for State on those contentions.\n<\/p>\n
        8.   The  plaintiffs came forward with the suit, specifically averring
\nthat they along with the first defendant were the legal heirs of the  deceased
\nVedanayagam,  and  thus, the plaintiffs were entitled to get one half share in
\nall the properties and  assets  of  the  said  Vedanayagam,  while  the  first
\ndefendant was  entitled  to  one  half  share  in those properties.  The first
\ndefendant resisted the claim stating that she was the only legal heir  of  the
\ndeceased  Vedanayagam, which is evident from the legal heir certificate issued
\nby the Tahsildar; that she has been nominated by him to get the family benefit
\nfund, and hence, she alone was entitled to get those funds.  The  stand  taken
\nby  the  State  was that the said Vedanayagam, during his life time, nominated
\nthe first defendant to get the family benefit fund; that she was deserted, but
\nnot divorced, and as per the Rules, she was entitled to get the  funds.    The
\ntrial Court  dismissed  the suit on discussion of the evidence.  The aggrieved
\nplaintiffs have preferred the first appeal, the judgment  of  which  is  under
\nchallenge before this Court.  A perusal of the judgment of the first appellate
\nCourt  would  make  it  abundantly  clear  that  the first appellate Court has
\nneither followed the mandatory provisions under Order 41  Rule  31  of  C.P.C.
\nnor  framed  the  necessary  points  for  determination  nor  appreciated  the
\nevidence, pertaining thereto nor given the necessary finding thereon.\n<\/p>\n
        9.  The specific case of the plaintiffs was that the plaintiffs  being
\nthe  kindreds of the deceased Vedanayagam, were also his legal heirs; that the
\norder of the Tahsildar, Kovilpatti, passed in Pa.Mu.23259\/84  dated  28.2.1985
\ncertifying  that  the  first  defendant is the sole legal heir of the deceased
\nVedanayagam is null and void; that the first defendant  should  be  restrained
\nfrom  receiving  full  amounts of family benefit fund amount, gratuity, family
\npension, provident fund or other amounts due to the deceased Vedanayagam  from
\ndefendants  2 and 4; and that the defendants 2 and 4 should be restrained from
\npaying such amounts to the first defendant.  Necessary questions  were  framed
\nby the  trial Court.  The evidence was also discussed, and a judgment was also
\nrendered by the trial Court.  Aggrieved over the finding recorded by the trial
\nCourt, the plaintiffs have taken it on appeal.  In such circumstances, the law
\nwould expect the first appellate Court  to  frame  the  necessary  points  for
\ndetermination  pertaining  to  the  pleadings,  raised  by the parties and the
\nissues, framed by the trial Court and then to have a  thorough  discussion  of
\nthe evidence thereon.\n<\/p>\n
        10.  In  KMM  KADAR HUSSAIN VS.  OMAR SELVARAJ AND TWO OTHERS (1997(I)
\nCTC 559), the Division Bench of this Court has held thus:
\n“We have gone thorough the judgment of the learned single Judge.   We  are  of
\nthe  view  that  the  judgment is defective, in that the learned Judge has not
\nfollowed the provisions under Order 41 Rule 31, C.P.C.  As rightly pointed out
\nby the learned Senior Counsel for the appellant, it is also incumbent  on  the
\npart of the Appellate Court to raise points for determination just to clear up
\nthe  pleadings  and focus the attention of the Court and of the parties on the
\nspecific and rival contentions, which arise for decision.    One  of  us  (AR.
\nLakshmanan, J.)  sitting  single,  in Kannammal V.  Kuppanna Gounder<\/a> 1996 (II)
\nMLJ 550, following a Division Bench of this  Court  in  Visalakshmi  Ammal  V.
\nDhanalakshmi Ammal<\/a> 1989 (2) L.W.  414 and for the reasons stated in the order,
\nhas  set aside the judgment of the First Additional District Judge, Coimbatore
\nand remitted back the matter to the said  Court,  to  dispose  of  the  appeal
\nafresh on merits and in accordance with law and after affording opportunity to
\nboth  the parties, within three months from the date of receipt of copy of the
\njudgment.\n<\/p>\n
The same view was taken by this Bench in the judgment dated 27.2.1997 rendered
\nby us  in  Palanisami  Pillai  V.    The  Commissioner,  Hindu  Religious  and
\nCharitable  Endowments (Admn.) Department, Madras-34 and<\/a> another (LPA No.16 of
\n1993).  In that  case,  similar  contention  was  raised  before  us.    While
\nconsidering  the  said  submission, this Bench has observed in paragraph 12 of
\nthe judgment as follows:-\n<\/p>\n
“The object of Order XLI Rule 31 CPC in making it incumbent upon the appellate
\nCourt to raise the points for determination  and  to  state  reasons  for  the
\ndecision is to clear up the pleadings and focus the attention of the court and
\nof  the  parties  on  the  specific  and  rival  contentions  which  arise for
\ndetermination as also to offer the litigant parties an opportunity of  knowing
\nand  understanding the grounds upon which the decision proceeds with a view to
\nenable them to exercise, if they see fit, and are so  advised,  the  right  of
\nsecond appeal  conferred  by Section 100 CPC.  On a perusal of the judgment of
\nthe learned single Judge, it appears to us that the reasons for  his  findings
\nwould not  satisfy Order XLI CPC.  This Court being the first appellate Court,
\nand being the final Court of facts, it is incumbent on it to consider all  the
\nevidence adduced  by  the  parties  in the case.  Learned Single Judge has not
\neven turned to the side of  the  plaintiffs  who  filed  voluminous  documents
\nmarked as  Exs.A1  to A33.  The parties to the suit or appeal, in our opinion,
\nhave a right to know the reasons that have led the Judge to  his  conclusions.
\nThe  learned  single  Judge  (  Bellie,  J.)  has not considered any facts and
\ncircumstances and the evidence adduced  both  oral  and  documentary  by  both
\nsides,  but merely recorded a finding by accepting the evidence of Dws 1 and 2
\nwithout himself bestowing any consideration thereon, it  can  surely  be  said
\nthat this  is  not  a  judgment  in  the eye of law.  In the instant case, the
\njudgment of the learned Subordinate Judge is  exhaustive  and  well  reasoned.
\nThe learned single Judge when he reversed the judgment, there should be enough
\nmaterial  to  show that the Court of appeal has considered it fully and formed
\nits own opinion.  In the present judgment, there is no discussion at all about
\nthe documentary evidence filed and marked as Exs.A1 to A33.  The  law  imposes
\nupon  the  Court  of  appeal  the  imperative duty and obligation of giving an
\nadequate and satisfactory judgment such as is required by law and  it  is  the
\nduty  to  explain  its  reasons for so doing more especially when the Court of
\nfirst instance has gone so fully into  the  facts  and  the  reasons  for  the
\nconclusions arrived at.”\n<\/p>\n
        Learned Senior Counsel appearing for the respondents has no  objection
\nfor  setting  aside  the  judgment  and decree of the learned single Judge and
\nremit  the  matter  to  another  learned  single  Judge  of  this  Court   for
\nconsideration  of  the entire facts and circumstances and the evidence adduced
\nby both the parties, both oral and documentary.  As observed by  us,  the  law
\nimposes  upon the Court of appeal the imperative duty and obligation of giving
\nan adequate and satisfactory judgment as is required by law and it is the duty
\nof the Court to explain its reasons for so doing,  more  especially  when  the
\nCourt  of  first instance has gone so fully into the facts and the reasons for
\nthe conclusions arrived at.”\n<\/p>\n
        11.  When an imperative duty and an obligation is cast upon the  Court
\nof appeal  viz.  the first appellate Court, it being the final court of facts,
\nis duty bound to apply its mind independently afresh on the  evidence  adduced
\nby  the  parties  before  the  trial  Court and to explain its reasons for the
\nfindings and conclusions arrived at.  In the instant case, a  reading  of  the
\nimpugned  judgment  would  make  it  clear  that the first appellate Court has
\nfailed to do so.  Therefore, without going into the merits or otherwise of the
\nrival contentions, put forth by the parties,  what  are  all  required  to  be
\nstated  is  that  the  judgment of the first appellate Court has got to be set
\naside, in view of the  non-observance  of  the  mandatory  provisions  in  not
\nframing  the  necessary  points for determination, not discussing the evidence
\nadduced and not recording a correct finding on those points,  and  the  matter
\nhas to be remitted to the first appellate Court.\n<\/p>\n
        12.   In  the result, this second appeal is allowed, setting aside the
\njudgment and decree of the first appellate Court.  The matter is remitted
\nback to the first appellate Court with a direction to dispose  of  the  appeal
\nafresh on merits and in accordance with law and after affording an opportunity
\nto  both the parties within a period of two months from the date of receipt of
\na copy of this judgment.  The parties shall bear their costs.\n<\/p>\n
Index:  yes
\nInternet:  yes<\/p>\n
To:\n<\/p>\n
1.  The Subordinate Judge
\nTuticorin\n<\/p>\n
2.  The District Munsif
\nKovilpatti\n<\/p>\n
3.  The Record Keeper
\nV.R.  Section
\nHigh Court, Madras.\n<\/p>\n
nsv\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Kuruvammal @ Sheela Devi vs M.Moses on 4 March, 2004 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04\/03\/2004 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM SECOND APPEAL No.1787 of 1991 Kuruvammal @ Sheela Devi .. Appellant -Vs- 1. M.Moses 2. M.Solemon (died) 3. M.Sargunam (died) 4. Rathinamani (died) 5. State Represented by […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-174768","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nKuruvammal @ Sheela Devi vs M.Moses on 4 March, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kuruvammal-sheela-devi-vs-m-moses-on-4-march-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kuruvammal @ Sheela Devi vs M.Moses on 4 March, 2004 - 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