{"id":223409,"date":"2007-02-20T00:00:00","date_gmt":"2007-02-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chinthamani-ammal-vs-nandagopal-gounder-and-anr-on-20-february-2007"},"modified":"2018-02-08T06:00:52","modified_gmt":"2018-02-08T00:30:52","slug":"chinthamani-ammal-vs-nandagopal-gounder-and-anr-on-20-february-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chinthamani-ammal-vs-nandagopal-gounder-and-anr-on-20-february-2007","title":{"rendered":"Chinthamani Ammal vs Nandagopal Gounder And Anr on 20 February, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Chinthamani Ammal vs Nandagopal Gounder And Anr on 20 February, 2007<\/div>\n
Author: S Sinha<\/div>\n
Bench: S.B. Sinha, Markandey Katju<\/div>\n
           CASE NO.:\nAppeal (civil)  6198 of 2000\n\nPETITIONER:\nChinthamani Ammal\n\nRESPONDENT:\nNandagopal Gounder and Anr\n\nDATE OF JUDGMENT: 20\/02\/2007\n\nBENCH:\nS.B. Sinha & Markandey Katju\n\nJUDGMENT:\n<\/pre>\n
J U D G E M E N T<\/p>\n
S.B. SINHA,J.\n<\/p>\n
\tThis appeal is directed against a judgment and decree dated
\n31.07.1998 passed by a learned Single Judge of the High Court of Judicature
\nat Madras in Second Appeal No. 1899 of 1985 whereby and whereunder an
\nappeal under Section 100 of the Code of Civil Procedure preferred by the
\nrespondents herein from a judgment and decree dated 11.09.1985 passed by
\nthe Subordinate Judge, Arni, North Arcot District in Appeal Suit No. 68 of
\n1984 was allowed, in turn, allowing an appeal from a judgment and decree
\ndated 27.07.1984 passed by the Court of the Principal District Munsif, Arni
\nin Original Suit No. 1301 of 1979.\n<\/p>\n
 \tPlaintiffs in the suit are the respondents before us.  The said suit was
\nfiled for declaration and injunction against the appellant herein.\n<\/p>\n
 \tKesava Gounder and Respondent No. 1 were brothers.  They
\nadmittedly were members of a joint family.  Kesava Gounder was suffering
\nfrom small pox.  He died in 1943.  Immediately prior to his death, he
\nallegedly expressed his intention to severe his status as a member of the joint
\nfamily.\n<\/p>\n
 \tThe wife of the said Kesava Gounder (mother of the appellant herein)
\nand the appellant were admittedly looked after by the respondents.
\nHowever, the mother of the appellant left the family in or about 1945 and
\nmarried another person.  Appellant was not only brought up by Respondent
\nNo. 1, she was also given in marriage.  She allegedly claimed a share in the
\nproperty.  Possession of the respondents was sought to be disturbed.
\nRespondents filed a suit for declaration and injunction against her in the
\nCourt of Munsif.  The principal issue which arose for consideration in the
\nsaid suit was as to whether the said Kesava Gounder had expressed his
\nintention to separate as a result whereof the joint family severed although no
\npartition by meets and bounds took place.\n<\/p>\n
 \tThe contention of the respondents was that the property being a joint
\nfamily property on the death of Kesava Gounder in 1943, they succeeded
\nthereto by survivorship and had been enjoying the same ever since and only
\nat a much later date the appellant made an attempt to disturb their
\npossession.\n<\/p>\n
 \tAppellant’s husband had also filed a suit  claiming a leasehold right in
\nthe said property.\n<\/p>\n
 \tBoth the suits were heard together.    The Trial Court by its judgment
\nand order dated 27.07.1984 opined that the said Kesava Gounder died in the
\nyear 1943 as a member of undivided joint family and, thus, the appellant had
\nderived no right, title and interest in the said property by succession or
\notherwise.  An appeal preferred thereagainst by the appellant, however, was
\nallowed by the Subordinate Judge holding that the father of the appellant
\ndied as a divided member of the joint family as a result whereof she became
\nentitled to claim half share.  The second appeal preferred by the respondents
\nherein from the said judgment and decree passed by the first appellate court
\nhas been allowed by reason of the impugned judgment.
\n\tMr. B. Sridhar, learned counsel appearing in support of the appellant,
\nwould submit that although the appellant at the time of her father’s death
\nwas only three years old, the factum of separation was proved by DW-2 – her
\naunt, who in her deposition stated:\n<\/p>\n
“The father of this defendant while he was unwell
\nbecame divided in status.  At that prevailing
\nsituation out and out partition was not possible.
\nThe first plaintiff gave his word to take care of this
\ndefendant and her mother.”\n<\/p>\n
\tThe learned counsel would contend that in view of the decision of this
\nCourt in A. Raghavamma and another v. A. Chenchamma and another [AIR
\n1964 SC 136], the father of the appellant and Respondent No. 1 herein
\nhaving separated themselves, she succeeded to the share of her father.\n<\/p>\n
 \tThe learned counsel appearing on behalf of the respondents, on the
\nother hand, would support the judgment.\n<\/p>\n
\tAlthough, before us, the appellant has made a claim of deriving right,
\ntitle and interest by way of succession to the interest of late Kesava
\nGounder, in the written statement filed by her before the learned Trial Judge,
\nonly a limited right was claimed, which, allegedly, culminated into an
\nabsolute title in terms of Section 14(1) of the Hindu Succession Act, 1956.
\nThe High Court in its judgment held that the property in suit being
\nagricultural property, the Hindu Women’s Right to Property Act, 1937 being
\nnot applicable in relation thereto in the year 1943, the mother of the
\nappellant or for that matter, she herself could not have succeeded to her
\nfather’s interest in the property which was a joint family property.  It was
\nfurther held that the plea that the said Kesava Gounder died as a divided
\nmember was put forth 36 years after his death, was wholly improbable.\n<\/p>\n
\tThe legal position that the appellant herein could not claim any right,
\ntitle and interest whether in terms of the provisions of the Hindu Women’s
\nRight to Property Act, 1937 or as a successor of the said Kesava Gounder, if
\nthe joint status was not severed, is not in dispute.    The Hindu Women’s
\nRight to Property Act was not applicable in relation to agricultural land.  The
\nState of Madras made an amendment in that behalf in the year 1947
\nwhereafter, only a widow became entitled to claim limited ownership in the
\nshare of her husband.   The mother of the appellant i.e. wife of the said
\nKesava Gounder, thus, did not derive any right, title and interest in the
\nproperty of her husband in the year 1943, when he expired.  Furthermore,
\nadmittedly, she left the family and married another person in the year 1945
\nand thus the question of her deriving any benefit in terms of the 1947
\namendment also did not arise.\n<\/p>\n
\tBefore the learned Trial Judge, the parties adduced their respective
\nevidences.  The learned Trial Judge had an occasion to look to the
\ndemeanour of the witnesses.  He came to the conclusion that the properties
\nin suit had all along been held as a joint family property opining that the
\nfather of the appellant did not have any divided status as alleged or at all.\n<\/p>\n
\t  The first Appellate Court reversed the said finding relying only on or
\non the basis of the statement made by DW-2 – the aunt of the appellant
\nwhich has been noticed by us hereinbefore.   The said statement by itself
\ndoes not prove that the said Kesava Gounder made an unequivocal
\ndeclaration that he intended to separate himself from his brother or the same
\nwas duly communicated to the other co-sharers.   DW-2 did not say when
\nsuch a declaration was made in presence of all coparceners.   It was not
\nstated that at the time of making such purported declaration, the respondents
\nwere present.\n<\/p>\n
\tIf such a declaration had been made and the respondents herein
\naccepted the same, ordinarily, not only the respondents would be asked to
\ndivide the property by partition by meets and bounds but also to look after
\nthe said property which fell in the share of the appellant.  Allegedly,
\nRespondent No. 1 was requested to look after his family and not their
\nproperty.  The property, admittedly, continued to be possessed as a joint
\nproperty.   It was never partitioned by meets and bounds.  Appellant never
\npaid any rent separately.  No revenue record was prepared in her name.\n<\/p>\n
\tEven the husband of the appellant claimed the property as a lessee.
\nWhen the properties continued to be possessed jointly by the owners thereof,
\na presumption in regard to the status of joint family both backward and
\nforward must be raised as no evidence was brought on records to establish
\nunequivocal  declaration on the part of Kesava Gounder to separate himself
\nfrom the joint family.  If having regard to the nature of oral evidences
\nadduced before it, the learned Trial Judge came to the conclusion that the
\nappellant had failed to prove her case, the first Appellate Court, in our
\nopinion, as has rightly been held by the High Court, could not have reversed
\nthe said finding without assigning sufficient and cogent reason therefor.\n<\/p>\n
\tIn law there exists a presumption in regard to the continuance of a
\njoint family.   The party who raises a plea of partition is to prove the same.
\nEven separate possession of portion of the property by the co-sharers itself
\nwould not lead to a presumption of partition.  Several other factors are
\nrequired to be considered therefor.\n<\/p>\n
\tFurthermore, when the learned Trial Judge arrived at a finding on the
\nbasis of appreciation of oral evidence, the first Appellate Court could have
\nreversed the same only on assigning sufficient reasons therefor.  Save and
\nexcept the said statement of DW-2, the learned Judge did not consider any
\nother materials brought on records by the parties.\n<\/p>\n
 \tIn Mandholal v. Official Assistance of Bombay [AIR 1950 Federal
\nCourt 21], it was observed:\n<\/p>\n
“It is true that a Judge of first instance can never
\nbe treated as infalliable in determining on which
\nside the truth lies and like other tribunals he may
\ngo wrong on question of fact but on such matters if
\nthe evidence as a whole can reasonably be
\nregarded as justifying the conclusion arrived at, the
\nappeal court should not lightly interfere with the
\njudgment.”\n<\/p>\n
 [See also Madhusudan Das v. Narayanibai – AIR 1983 SC 114 : (1983) 1
\nSCC 35], <\/p>\n
 \tIn Smt. Rajbir Kaur and Another v. S. Chokesiri and Co.<\/a> [(1989) 1
\nSCC 19], this Court observed:\n<\/p>\n
“48. Reference on the point could also usefully be
\nmade to A.L. Goodharts article in which, the
\nlearned author points out :\n<\/p>\n
“A judge sitting without a jury must perform dual
\nfunction. The first function consists in the
\nestablishment of the particular facts. This may be
\ndescribed as the perceptive function. It is what you
\nactually perceive by the five senses. It is a datum
\nof experience as distinct from a conclusion.\n<\/p>\n
It is obvious that, in almost all cases tried by a
\njudge without a jury, an appellate court, which has
\nnot had an opportunity of seeing the witnesses,
\nmust accept his conclusions of fact because it
\ncannot tell on what grounds he reached them and
\nwhat impression the various witnesses made on
\nhim.”(emphasis supplied)\n<\/p>\n
49. The following is the statement of the same
\nprinciple in “The Supreme Court Practice: ”\n<\/p>\n
Great weight is due to the decision of a judge of
\nfirst instance whenever, in a conflict of testimony,
\nthe demeanour and manner of witnesses who have
\nbeen seen and heard by him are material elements
\nin the consideration of the truthfulness of these
\nstatements. But the parties to the cause are
\nnevertheless entitled as well on questions of fact as
\non questions of law to demand the decision of the
\nCourt of Appeal, and that court cannot excuse
\nitself from the task of weighing conflicting
\nevidence, and drawing its own conclusions, though
\nit should always bear in mind that it has neither
\nseen nor heard the witnesses and should make due
\nallowance in this respect.(pp. 854-55)
\n… Not to have seen witnesses puts appellate judges
\nin a permanent position of disadvantage against the
\ntrial judge, and unless it can be shown that he has
\nfailed to use or has palpably misused his advantage
\nfor example has failed to observe inconsistencies
\nor indisputable fact or material probabilities [ibid.
\nand Yuill (1945) p. 15; Watt v. Thomas] the higher
\ncourt ought not take the responsibility of reversing
\nconclusions so arrived at merely as the result of
\ntheir own comparisons and criticisms of the
\nwitnesses, and of their view of the probabilities of
\nthe case. … (p. 855)
\n… But while the Court of Appeal is always
\nreluctant to reject a finding by a judge of the
\nspecific or primary facts deposed to by the
\nwitnesses, especially when the finding is based on
\nthe credibility or bearing of a witness, it is willing
\nto form an independent opinion upon the proper
\ninference to be drawn from it…. (p. 855)\n<\/p>\n
50. A consideration of this aspect would be
\nincomplete without a reference to the observations
\nof B.K. Mukherjea, J., in Sarju Pershad Ramdeo
\nSahu v. Raja Jwaleshwari Pratap Narain Singh<\/a>
\nwhich as a succinct statement of the rule, cannot
\nindeed be bettered :\n<\/p>\n
“The question for our consideration is undoubtedly
\none of fact, the decision of which depends upon
\nthe appreciation of the oral evidence adduced in
\nthe case. In such cases, the appellate court has got
\nto bear in mind that it has not the advantage which
\nthe trial Judge had in having the witnesses before
\nhim and of observing the manner in which they
\ndeposed in court. This certainly does not mean that
\nwhen an appeal lies on facts, the appellate court is
\nnot competent to reverse a finding of fact arrived
\nat by the trial Judge. The rule is and it is nothing
\nmore than a rule of practice that when there is
\nconflict of oral evidence of the parties on any
\nmatter in issue and the decision hinges upon the
\ncredibility of the witnesses, then unless there is
\nsome special feature about the evidence of a
\nparticular witness which has escaped the trial
\nJudges notice or there is a sufficient balance of
\nimprobability to displace his opinion as to where
\nthe credibility lies, the appellate court should not
\ninterfere with the finding of the trial Judge on a
\nquestion of fact.\n<\/p>\n
51. The area in which the question lies in the
\npresent case is the area of the perceptive functions
\nof the trial Judge where the possibility of errors of
\ninference does not play a significant role. The
\nquestion whether the statement of the witnesses in
\nregard to what was amenable to perception by
\nsensual experience as to what they saw and heard
\nis acceptable or not is the area in which the well-
\nknown limitation on the powers of the appellate
\ncourt to reappreciate the evidence falls. The
\nappellate court, if it seeks to reverse those findings
\nof fact, must give cogent reasons to demonstrate
\nhow the trial court fell into an obvious error.\n<\/p>\n
52. With respect to the High Court, we think, that,
\nwhat the High Court did was what perhaps even an
\nappellate court, with full fledged appellate
\njurisdiction would, in the circumstances of the
\npresent case, have felt compelled to abstain from
\nand reluctant to do. Contention (c) would also
\nrequire to be upheld.”\n<\/p>\n
 \tIn Jagannath v. Arulappa and Another [(2005) 12 SCC 303], this
\nCourt while considering the scope of Section 96 of the Code of Civil
\nProcedure opined that it would be wholly improper to allow first appeal
\nwithout adverting to the specific findings of the Trial Court.\n<\/p>\n
 \tIn H.K.N. Swami v. Irshad Basith (Dead) By LRs. [(2005) 10 SCC
\n243], this Court opined that the appellate court is required to address all the
\nissues and determine the appeal upon assignment of cogent reasons.
\n\tIn this view of the matter, it is not necessary for us to consider the
\nsubmission of Mr. Sridhar in regard to the effect of the severance of the joint
\nstatus, as adumbrated by this Court in A. Raghavamma (supra).\n<\/p>\n
\tFor the reasons aforementioned, there is no merit in this appeal, which
\nis accordingly dismissed.  However, in the facts and circumstances of this
\ncase, there shall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Chinthamani Ammal vs Nandagopal Gounder And Anr on 20 February, 2007 Author: S Sinha Bench: S.B. Sinha, Markandey Katju CASE NO.: Appeal (civil) 6198 of 2000 PETITIONER: Chinthamani Ammal RESPONDENT: Nandagopal Gounder and Anr DATE OF JUDGMENT: 20\/02\/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G E M […]<\/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":[30],"tags":[],"class_list":["post-223409","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nChinthamani Ammal vs Nandagopal Gounder And Anr on 20 February, 2007 - 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\/chinthamani-ammal-vs-nandagopal-gounder-and-anr-on-20-february-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chinthamani Ammal vs Nandagopal Gounder And Anr on 20 February, 2007 - 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