CRP/2389/2024 of S. Sivakumar Vs Jothi on 1 September 2026

ORDER

Judgment Debtors 3 to 6 in EP No.1 of 2019 are the revision petitioners, aggrieved by the dismissal of their application filed under Section 47 of Civil Procedure Code.

2. Heard Mr.R.Rajavelavan, learned counsel for the revision petitioners and Mr.R.Sunil Kumar, learned counsel for the contesting first respondent.

3. Mr.R.Rajavelavan, learned counsel for the revision petitioners would firstly contend that the executing Court has erroneously dismissed the application filed under Section 47 of Civil Procedure Code without noticing that fraud has been played on the Court viz., the mother of the revision petitioners, being entitled to an admitted share in the suit property and suppressing the same, she was referred to as a permissive occupant and proceedings were taken against her, which resulted in a decree for possession being passed against her.

4. Mr.R.Rajavelavan, learned counsel for the revision petitioners would invite my attention to the applicability of Section 44 of the Indian Evidence Act to the facts of the present case and would therefore contend that no constructive resjudicata can be put against the petitioners. He would further state that admittedly the property was the self acquired property of the grand father of the petitioners and therefore, being a daughter, the petitioners’ mother would become entitled to a share in the said property and her possession was only as a co-owner and not as a permissive occupant. It is also the contention of Mr.Rajavelavan that if the petitioners’ mother was alive and could have raised the said issue and claimed a share in the suit property as a co-owner, then the said right will also enure to her legal heirs including the revision petitioners. In support of his contentions, the earned counsel relied on the following decisions:-

(i) Arunachala Gounder (dead) by L.Rs vs Ponnusamy and Others, reported in 2022 (1) CTC 919;

(ii) A.John vs Vasanthi and Others, reported in 2018 (6) CTC

(iii) Shasidhar & Others vs Ashwini Uma Mathad & anr, reported in 2015(2) MWN (Civil) 556

(iv) A.V.Papayya Sastry & Others vs Government of A.P & Others, reported in 2007(4) L.W139.

5. Per contra, Mr.R.Sunil Kumar, learned counsel appearing for the contesting first respondent would firstly state that the petitioners’ grand father Govindasamy Chettiar died in the year 1931 and therefore, the estate opened for succession in the year 1931 at which point of time admittedly, female heirs were not entitled to any right in the property and the property belonging to a male Hindu would be inherited only by the male lineage and not by any female heirs. He would further state that the petitioners’ mother herself did not raise the issue of her entitlement to a share in the suit property, despite having contested the suit. Therefore, it is the contention of Mr.R.Sunil Kumar that the petitioners now cannot claim something which was not raised by their predecessor-in interest viz., their mother. He would further state that the mother herself filed a written statement accepting the case of the plaintiff that she was only a permissive occupant. In such circumstances, Mr.R.Sunil Kumar, counsel appearing for the respondents states that the petitioners have no right to challenge the execution of the decree in favour of the first respondent. In support of his submission, the learned counsel relied on the decision of the Division Bench of Bombay High Court in Radhabai Balasaheb Shirke (since deceased) through her heirs and L.Rs Kanchan Pralhad Shinde and Others vs Keshav Ramchandra Jadhav and Others, reported in 2025(2)Mh.L.J.128. The learned counsel therefore prays for dismissal of the revision.

6. I have carefully considered the submissions advanced by the learned counsel on either side and gone through the records.

7. It is not in dispute that the suit came to be filed for recovery of possession from the mother of the petitioners alleging that the petitioners’ mother was a permissive occupant. The mother of the petitioners contested the suit, unsuccessfully. However, the mother did not raise a plea that she was a co-owner and consequently entitled to remain in possession. In fact, on the contrary, she admitted to the claim of the plaintiff that she is a permissive occupant. Today, the said decree has become final. However, when the decree was put to execution against the petitioners, who are the legal heirs of the defendant in the suit for recovery of possession, the petitioners have filed an application under Section 47 of the Civil Procedure Code, questioning the executability of the decree.

8. The ground of attack to the execution of the decree is that the grand father of the petitioners by name Govindasamy Chettiar purchased the suit property and it was his self acquired property. He died in the year 1931 and being a daughter of the original owner, the mother of the petitioners was entitled to an equal share, along with the other surviving legal heirs of said Govindasamy Chettiar, in view of Section 8 of Hindu Succession Act, 1956.

9. It is the contention of the learned counsel for the revision petitioners that the suit for partition in O.S.No.9 of 1958 on the file of Sub Court, Cuddalore is a void and unenforceable decree for partition since it was as between the sons of Govindasamy Chettiar alone, leaving out the daughters, including the mother of the revision petitioners.

10. In fact, according to the petitioners, the very act of filing a suit for partition in O.S.No.9 of 1958 and obtaining a preliminary decree and final decree was fraudulent and therefore, the decree itself is null and void. It is also not in dispute that the respondents 1 and 2 herein were allotted the suit property under the final decree proceedings in O.S.No.9 of 1958. I also find that the petitioners in fact led oral and documentary evidence in the application filed under Section 47 of Civil Procedure Code.

11. The primordial contention of the petitioners is that if the petitioners’ mother was entitled to a share in the suit property, then, she cannot be termed as permissive occupant as she would be entitled to remain in possession as a co-owner. Unfortunately, for the petitioners, their mother herself did not take such a plea during the entire course of proceedings which came up to this Hon’ble Court, by way of Second Appeal.

12. On the contrary, as already referred herein above, in the written statement, the petitioners’ mother admitted to being a permissive occupant. In fact, this Court, while disposing of S.A.No.1103/2002 on 22.08.2011, set aside the concurrent findings of the trial Court and the first appellate Court and granted a decree for recovery of possession against Ranganayaki, the mother of the petitioners, who was the first respondent in SA No.1103 of 2002. The father of the petitioners, Sarangapani examined himself as DW1 in the said proceedings and had positively asserted in chief examination that his wife i.e., the mother of the petitioners was inducted in to possession of the suit property only by permission, in the year 1968.

13. Referring to the said admission, this Court allowed the Second Appeal finding that the claim of the petitioners’ mother that she was allotted to the suit property at a family partition cannot be accepted.

14. The question of whether the suit property was allotted to Nagarathinam towards his share was also gone into by this Court in the said Second Appeal. The said Nagarthinam, in turn, executed a Will in favour of the plaintiffs/respondents 1 and 2 herein.

15. In view of the above, the only question that survives for consideration is as to whether the petitioners claiming right under their mother are entitled to agitate co- ownership rights that was pleaded in a totally different context and also rejected by this Court, by way of filing an application under Section 47 of Civil Procedure Code challenging the executability of the decree for recovery of possession.

16. It is no longer upon to the petitioners to take a plea that their mother was not a permissive occupant since their father himself has admitted to the said position during the trial of the suit. The other question that remains is as to whether being a daughter of Govindasamy Chettiar, Ranganayaki, the mother of the petitioners would be entitled to succeed to an equal share along with the other legal heirs under Section 8 of Hindu Succession Act. Hindu Succession Act was brought into force on 17.06.1956. The Act is a prospective enactment and does not operate retrospectively.

17. Admittedly, Govindasamy Chettiar, who is the maternal grand father of the petitioners, died in the year 1931, much prior to the commencement of Hindu Succession Act, 1956. Therefore, on the said date, it is only the customary law that prevailed and the female heirs including daughters were not entitled to inheritance. Therefore, I do not see how the petitioners can allege fraud being played on Court by the male successors of Govindasamy Chettiar in filing O.S.No.9 of 1958. It is under the final decree that one of the sons of Govindasamy Chettiar, by name Nagarathina Chettiar

became entitled to the suit property and subsequently he has executed a Will in favour of the respondents 1 and 2 herein. The partition suit has attained finality and even a final decree has been passed. It is only to recover possession of the property under the occupation of the mother of the petitioners that the suit was originally instituted. Excepting for contending that the suit property was allotted to her share in a family partition of the year 1968, no other defence was taken by the mother of the petitioners. The mother of the petitioners was not successful in establishing the alleged plea of oral partition allotting the suit property in entirety towards her share. It is only in this regard that this Court decreed the suit for recovery of possession, setting aside the concurrent errors committed by the trial Court as well as the first appellate Court.

18. I do not see how the petitioners can now plead a right that was not even taken by their mother or father as defendants in the suit and deny the fruits of the decree in the execution proceedings to the decree holders.

19. Coming to the decisions that have been relied on, I find that the very same decisions relied on now by the learned counsel for the petitioners were also placed for consideration of the executing Court and the executing Court rightly found that there is no fraud on Court as in the cases of A.V.Papayya Sastry and Others and A.John. Those were cases that arose on entirely different factual matrix. As already discussed, neither the mother nor the father of the petitioners who were admittedly the defendants in the suit for recovery of possession raised the plea of co-ownership. Therefore, it is not open to their legal heirs viz., the petitioners herein to claim something which was waived by their parents themselves. In any event, even as per law, admittedly Govindasamy Chettiar died in the year 1931 and his estate opened for succession in the year 1931, when admittedly female heirs were not entitled to any share. Right of daughters were codified for the first time only in the year 1956 and that too, prospectively. Therefore, there is no infirmity for the male heirs of Govindasamy Chettiar to have obtained a partition decree in a suit filed in the year 1958.

20. Even in Sasidhar’s case, the Hon’ble Supreme Court only held that in a suit for partition, nature and character of the properties, devolution of interest in the property, capability of property being effectively partitioned and inclusion of all properties and co-sharers/co-parceners/co-owners have to be considered while deciding a suit for partition. I do not see how this decision would apply to the facts of the present case, especially when the parents of the petitioners themselves did not stake any claim by way of right or interest in the suit property by intestate succession pursuant to the demise of Govindasamy Chettiar in the year 1931.

21. Even in Arunachala Gounder’s case, the Hon’ble Supreme Court finding that succession of the suit property opened only in the year 1967, held that Hindu Succession Act, 1956 would apply and therefore, being class-I legal heirs of her father/the daughter would be entitled to claim right by inheritance and not by survivorship, noticing the mandate of Section 15 of Hindu Succession Act. Here, admittedly, succession opened in 1931 and therefore, I do not see how this decision can be applied to the facts of the present case.

22. The Hon’ble Division Bench of Bombay High Court in Radhabai Balasaheb Shirke’s case, relying the ratio laid down in Kasabai Tukaram Karwar and Ors vs Nivruti (dead) through Legal Heirs and Ors, reported in 2022 SCC Online SC 918 held that inheritance has to be examined when succession opens and finding that succession opened prior to Hindu Succession Act, 1956 coming into force, the Division Bench held that a daughter would have no right. This decision would in fact squarely apply to the facts of the present case as well. Further, there is no quarrel with regard to the prospective applicability of the provisions of the Hindu Succession Act, 1956. In fact, the Hon’ble Supreme Court in Eramma vs Veerupana and Ors, reported in 1965 SCC Online SC 23 held that the provisions of Hindu Succession Act, 2956 would apply only to a person who dies after the commencement of the said Act, i.e., on or after 17.06.1956. Therefore, the case now projected by the revision petitioners that their mother was also a co-owner is sans any merit.

23. I do not find any illegality or perversity in the order of the executing Court in dismissing the application filed under Section 47 of Civil Procedure Code, warranting interference in this revision.

24. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. 01.09.2026 sr Index:yes Website:yes Speaking Order To The Principal District Munsif Court, Cuddalore

P.B.BALAJI.,J sr Pre-Delivery Order in CRP No. 2389 of 2024 01.09.2026