Skip to content


Santhakumari Vs. Gurumurthy and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1976)2MLJ432
AppellantSanthakumari
RespondentGurumurthy and ors.
Cases Referred and Thirumalaiswami Mudali v. Periasami Mudali
Excerpt:
.....seethalakshmi, the objector has to get the property. 3.,dated 13th november, 1970, that the land tribunal should have called for all the records and disposed of the matter itself, that it is the duty of the objector to produce evidence to substantiate his case and inasmuch as he has failed to do so, the matter should not be remanded in order to enable the objector to fill up the lacuna and that as per order 41, rule 23, civil procedure code, the tribunal ought to have exhausted the remedies under order 41, rule 23, civil procedure code. 3, dated 18th november, 1970'have nothing to do with the present proceedings, that the petitioner herein ought to have produced end marked alt the documents she wanted to rely upon in these proceedings, that since she has, failed to do so and since..........aggrieved by the order of the authorised officer, the objector preferred an appeal to the land tribunal (subordinate judge of mayuram). the land tribunal found that the partition deed between ramachandra naidu, radhakrishna naidu and r.g. rajan was not before the court, that necessaiy parties had not been examined by the authorised officer as contemplated under section 10(5) of the act, that the prior proceedings refeired to by the authorised officer have neither been marked in these proceedings nor placed before the court and that without the earlier proceeding's before the court, the question of res judicata cannot be decided. the land tribunal also held that the will alleged to have been executed by ramadurai in favour of santhakumari and ammani ammai had not been produced.....
Judgment:
ORDER

P.R. Gokulakrishnan, J.

1. The 2nd Respondent, Santha-kumari in M.R.I. 117(R) NNL (A3) before the Authorised Officer (Land Reforms), Mayuram is the revision petitioner herein. Proceedings were taken against the revision petitioner and Ammani Ammal in respect of the lands belonging to the said petitioner and Ammani Ammal. A draft statement was published under Section 10(1) of Act LVIII of 1961. The first respondent feerern filed objections under Section 10(5) of the said Act stating that the lanas stated in the objection; petition have to be excluded from the holdings of Radha-krishna Naidu as he happened to be a life estate holder. According to the objector, the lands mentioned in the objection petition are vested in him and hence the same has to be deleted from the holdings and further proceedings taken in the light of the objections. The petitioner and the second respondent herein contended that the objector has no right, title or interest in the property mentioned in his objection petition and nothing has vested in him.

2. To understand the case, it is necessary to refer to certain facts of this case. One Ramachandra Naidu, had two sons by name R.G. Rajan and Radhakrishnan. Gurumurthy, the objector is the son of R.G. Rajan. Radhakrishna Naidu married one Seethalakshmi. She had no issues. It is stated by the petitioner herein that Radhakrishna Naidu married Ammani Ammal and through her he had a son by name Ramadurai aaid.two daughters by name Santhakumari and Suryakumari. Santhakumari is the petitioner herein. Ramachandra Naidu and his two sans R.G. Rajan and Radhakrishnan originally partitioned the joint family property and each one got one-third share. It is stated that Ramachandra Naidu executed a will in 1928 itself giving life interest to Radhakrishna Naidu and after his life-time his male issue has to get the property. The objector relied upon a codicil, dated 13th March, 1940 executed by Ramachandra Naidu and stated that as per this codicil the propeity of Ramachandra Naidu has to be enjoyed only by the male issue through Seethalakshmi and if there is no male issue through Seethalakshmi, the objector has to get the property.

3. The authorised officer, after going through the codicils, dated 17th June, 1928 and 13th March, 1940 and after taking into consideration as to whether Gurumurthi has got a vested remainder over the property as claimed by him in his objection petition, held that since all these matters have been decided in MRI. 37(R), dated 25th November, 1970 the objector cannot reopen the same point over again. The authorised officer, holding that Ramadurai is the legal her of Radhakrishna Naidu and that his right has already been declared in M.R.I. 37(R), dated 25th November, 1970, dismissed the objection petition.

4. Aggrieved by the order of the authorised officer, the objector preferred an appeal to the Land Tribunal (Subordinate Judge of Mayuram). The Land Tribunal found that the partition deed between Ramachandra Naidu, Radhakrishna Naidu and R.G. Rajan was not before the Court, that necessaiy parties had not been examined by the Authorised Officer as contemplated under Section 10(5) of the Act, that the prior proceedings refeired to by the authorised officer have neither been marked in these proceedings nor placed before the Court and that without the earlier proceeding's before the Court, the question of res judicata cannot be decided. The Land Tribunal also held that the will alleged to have been executed by Ramadurai in favour of Santhakumari and Ammani Ammai had not been produced before the Court. With these findings, the Land Tributaal allowed the appeal by setting aside the order of the authorised officer and remanded the matter for fresh disposal to the authorised officer in accordance with law and also in accordance with the observations contained in the judgment of the Land Tribunal.

5. Aggrieved by the said order of remand, the petitioner herein has preferred the above civil revision petition under Section 83 of Madras Act LVIII of 1961.

6. MR. V. Sridevan, the learned Counsel appearing for the petitioner. and also Mr. Santhanam, who continued the arguments on behalf of the petitioner, submitted that the present proceedings M.R.I.N. 7(R) NNL (AS) are the continuation of the proceedings in M.R.I. 37 (R)/NNL. A.3., dated 13th November, 1970, that the Land Tribunal should have called for all the records and disposed of the matter itself, that it is the duty of the objector to produce evidence to substantiate his case and inasmuch as he has failed to do so, the matter should not be remanded in order to enable the objector to fill up the lacuna and that as per Order 41, Rule 23, Civil Procedure Code, the Tribunal ought to have exhausted the remedies under Order 41, Rule 23, Civil Procedure Code. The Tribunal ought to have exhausted the remedies, under Order 41, Rules 24 to 27, Civil Procedure Code, before it had remanded the matter under Order 41, Rule 23, Civil Procedure Code.

7. Mr. R.G. Rajan, the learned Counsel appearing for the first respondent-objector submitted that the proceedings in M.R.I. 37(R) NNL. A.3, dated 18th November, 1970'have nothing to do with the present proceedings, that the petitioner herein ought to have produced end marked alt the documents she wanted to rely upon in these proceedings, that since she has, failed to do so and since the authorised officer has relied upon certain documents, which are not before the Court, the Tribunal has correctly remanded the matter for fresh disposal in the interest of rendering justice and that the question of invoking Order 41, Rules 24 to 27, Civil Procedure Code, will not arise in this case on the facts and circumstances, of the present proceedings. Mr. R.G. Rajan, also contended that there is no' question of res judicata as such in this case, inasmuch as the objector was not a party to the previous proceedings. The finding as regards res judicata even without marking the previous proceedings as exhibit in these proceedings, is wrong.

8. I have been taken through the proceedings in M.R.I. 37(R) NNL. A.3., dated 18th November, 1970 and the proceedings in M.R.I. 117(R) NNL A.3, dated 31st December, 1972. M.R.I. 37(R) NNL. A3, dated 18th November, 1970 is in respect of proceedings started against the properties in the hands of Radhakrishna Naidu, Santhakumari the daughter of Radhakrishna Naidu, Ammani Ammal, the wife of Radhakrishna Naidu, and Seethalakshmi Ammal another wife of Radhakrishna Naidu. In that proceeding, the present objector was not a party. In that proceeding, a draft statement under Section 10(1) was finalised stating that Ramadurai is the son of Radhakrishna Naidu and Santha-kumari and Ammani Ammal are the lega.l representatives of Ramadurai as per, the will executed by him. As fat as the Present proceedings are concerned, which is M.R.I. 117(R) NNL A. 3, dated 31st December, 1972, Section 10(1) notification was made in respect of the lands in question in the name of Santhakumari and Ammani Ammal. The objector Gurumurthy wanted in his objection petition that the lands stated in his petition should be excluded from the holding of Radhakrishna Naidu as he happened to be a life estate holder. Thus it is clear that the proceedings now under question relate to a portioji of the propeity involved in the previous proceedings. At that time when the previous proceedings were taken, Radhakrishna Naidu was alive. But his son Ramadurai died in 1967 itself. Hence it is too much for the petitioner to contend that the present proceeding is the continuation of M.R.I. 37(R) NNL. A.3., dated 18th November, 1970 1 am of the view that these two proceedings are independent of each other and it is not correct to state that the present proceeding is the continuation of the previous one.

9. in the light of the above said finding of mine, it has to be seen as to whether the remand made by the Land Tribunal can be agitated in this revision petition. Mr. Santhanam, the learned Counsel appearing for the petitioner cited Anna-malai v. Narayanaswami Pillai : AIR1972Mad316 , wherein Venkataraman, J., has held:

Where the trial Court has considered the evidence adduced before it and come to some conclusion the appellate Court should not normally remand the case. The appellate Court should see first whether it cannot dispose of the case itself under Order 41, Rules 24, 25, 26 and 27. Only if it is not possible so to do and it is necessary in the interests of justice to remit the suit, remand should be resorted to.

From this, Mr. Santhanam, submitted that the lower appellate Court ought to have looked into the documents and if need he ought to have taken further evidence, both documentary and oral by itself and should have disposed of the matter instead of remanding the case which will enable the respondent herein to fill up the lacuna, if any. The learned Counsel next cited a decision reported in Ghinnan Ambalarn v. Ramiah Maniam (1968) 81 L.W. 296, wherein Venkateraman, J., has held that the remand should not be' made for the purpose of enabling the party to let in additional evidence. The decision further states that the appellate Court before remand must come to the conclusion that the decree of the Court below has to be reversed. More or less to the same effect is the decision reported in Achammal v. Kristama Naidu (1968) 81 L.W. 291. Mr. Santhanam. also cited Atkayee v. Shanmugha Goundar (1965) 2 M.L.J. 259 and H. Venkatackala Iyengar v. B.N. Thimmajamma and Ors. : AIR1959SC443 , for the proposition that the burden is upon the person who prodounds the will and he ought to have discharged the said burden. The appellate Court cannot remand the case in order to give an opportunity to the propounder of the Will to let in evidence to substantiate the genuineness of the Will. Butchamma v. Ramasitamma : AIR1954Mad191 , is a decision for the proposition that for mere taking of additional evidence a case should not be remanded by the appellate Court. More or less to the same effect are the decisions reported in Ramakriskna v. Rangayya : AIR1954Mad783 and Thirumalaiswami Mudali v. Periasami Mudali : AIR1952Mad66 . Order 43, Rule 23, Civil Procedure Code, as per Madras Amendment reads:

Where the Gourtmrhoow f se decree an appeal is preferred has disposed of the suit upon a preliminary point and when the appellate Court in reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case, the appellate Court may by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

No doubt, the remand should not be for a flimsy ground or without coming to the conclusion that the decree of the Court below has to be set aside or for allowing the party to fill up the lacuna as propounded in the decisions referred above. If the appellate Court, in the interests of justice, after setting aside the decree of the Court below, wants that a remand has to be made, it can do so. Normally when the appellate Court can invoke the provisions under Order 41, Rules 24 to 27, Civil Procedure Code, to dispose of the matter by itself, it is not expedient on the part of the Court to remand the matter in such circumstances. But invoking Order 41, Rules 24 to 27 Civil Procedure Code, is a subjective test of the Court dealing with the matter and as such the main question that has to be considered in a case filed against the order of remand is as to whether the interests of justice requires such a remand.

10. Mr. Rajan, the learned Counsel appearing for the respondent-objector pointed out various provisions of the Land Reforms Act and the action to be taken by the authorities concerned. Section 8 deals with the furnishing of return by a person holding land in excess of 15 standard acres. Section 9 deals with the collection of information and Section 10 deals with the preparation and publication of draft statement as regards land in excess of the ceiling area and objection is called for under Section 10(5) of the Act and finally Section 12 provides for the publication of final statement. In the present case, it is only at the stage of Section 10(5) of the Act the objector came forward with the present objection. Thus it is clear that there cannot be two Section 10(1) notifications in one proceeding unless such a notification is made after remand by the higher authority. Hence to say that the proceeding in M.R.I. 117 (R)NNL. A. 3., dated 31st December, 1972 is the continuation of the proceedinsrs in M.R.I. 37(R) NNL. A. 3., dated 18th November, 1970 cannot be sustained.

The Tribunal in the interest of justice, thought that the authorised officer ought to have taken on file the documents referred and also the previous proceedings, before it gives any finding in favour of or against the objector concerned. On the other hand, the authorised officer seems to have assumed certain things on the basis of certain records which are not before the officer. In the absence of such records, the Tribunal thought it fit to set aside the order of the authorised officer and remand the matter for fresh disposal in accordance with law and in the light of the observations made by the appeltate authority.

11. Mr. Rajsn also pointed out that the present revision is filed under Section 83 of the Land Reforms Act. Under Section 78 of the Land Reforms Act, the Land Tribunal has power to remand a case. The provisions of the Code of Civil Procedure, will apply to the cases pending before the Land Tribunal. Since Section 83, which is the section that enabled the petitioner to file this revision petition before this Court, specifically states that the disposal of the revision will be on the basis of Section 115 of the Code of Civil Procedure, Mr. Rajan states there is no question of jurisdiction as such involved in this case to interfere with the order of remand, made by the Land Tribunal.

12. On the facts and circumstances of, the present case, I am of the view that the Tribunal, in the interest of justice, has correctly remanded the matter to the authorised officer. Further, I do not find any error of jurisdiction as such to interfere with the Order of remand passed by the Tribunal. In these circumstances, this civil revision petition is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //