V. KALYANASWAMY(D) BY LRS. AND ANOTHER Vs. L. BAKTHAVATSALAM
LAWS(SC)-2020-7-6
SUPREME COURT OF INDIA
Decided on July 17,2020

V. Kalyanaswamy(D) By Lrs. And Another Appellant
VERSUS
L. Bakthavatsalam Respondents


Referred Judgements :-

APPOVIER VS. RAMA SUBBA AIYAN AND OTHERS [REFERRED TO]
VENKATACHELA PILLAY VS. CHINNAIYA MUDALLAR [REFERRED TO]
KAMEPALLI AVILAMMA VS. MANNEM VENKATASWAMY [REFERRED TO]
PANDIT SURAJ NARAIN AND ANOTHER VS. PANDIT IQBAL NARAIN AND OTHERS [REFERRED TO]
SURAJ NARAIN VS. IQBAL NARAIN [REFERRED TO]
VITAL PUTTEN VS. YAMENAMMA [REFERRED TO]
BABU RAMASRAY PRASAD CHOUDHARY VS. RADHIKA DEVI [REFERRED TO]
BAL KRISHNA VS. RAM KSISHNA [REFERRED TO]
BAMALINGA ANNAVI VS. NARAVANA ANNAVI [REFERRED TO]
BAY BERRY APARTMENTS PVT. LTD. AND ORS. SHOBHA AND ORS [REFERRED TO]
KAWAL NARAIN VS. BUDH SINGH [REFERRED TO]
RAMA AYYAR VS. MEENAKSHI AMMAL [REFERRED TO]
SOUN-DARARAIAN VS. ARUNACHALAM CHETTY [REFERRED TO]
SYED KASAM VS. JORAWAR SINGH [REFERRED TO]
GIRJA BAI VS. SADASHIVE DHUNDIRAJ [REFERRED TO]
KANWARJIT SINGH DHILLON VS. HARDYAL SINGH DHILLON [REFERRED TO]
LAKSHMAN DADA NAIK VS. RAMACHANDRA DADA NAIR [REFERRED TO]
NARAYANA RAO VS. PURUSHOTAMA RAO [REFERRED TO]
PARVATIBAI VS. BHAGWANT PANDHARINATH [REFERRED TO]
SHYAM NARAYAN SINGH AND ORS. VS. RAMA KANT SINGH AND ORS [REFERRED TO]
SUBBARAMI REDDI VS. RAMAMMA [REFERRED TO]
SUNDARA ADAPA VS. GIRIJA [REFERRED TO]
SURAJ BUNSI KOER VS. SHEO PERSAD [REFERRED TO]
SHE MULCHAND AND CO VS. JAWAHAR MILLS LTD [REFERRED TO]
SIDHESHWAR MUKHERJEE VS. BHUBAESHWAR PRASAD NARAIN SINGH [REFERRED TO]
NANI BAI VS. GITA BAI KOM RAMA GUNGE [REFERRED TO]
GUMMALAPURA TAGGINA MATADA KOTTURUSWAMI VS. SETRA VEERAWA [REFERRED TO]
R B S S MUNNALAL VS. S S RAJKUMAR [REFERRED TO]
A RAGHAVAMMA VS. A CHENCHAMMA [REFERRED TO]
POTTI LAKSHMI PERUMALLU VS. POTTI KRISHNAVENAMMA [REFERRED TO]
M V S MANIKAYALA RAO VS. M NARASIMHASWAMI [REFERRED TO]
ERAMMA VS. VEERUPANA [REFERRED TO]
SATRUGHAN ISSER VS. SABUJPARI [REFERRED TO]
VALLIAMMAI ACHI VS. NAGAPPA CHETTIAR [REFERRED TO]
MANGAL SINGH VS. RATTNO DEAD [REFERRED TO]
PUTTRANGAMMA VS. M S RANGANNA [REFERRED TO]
KARMI VS. AMRU [REFERRED TO]
KRISHNA BRHARILAL VS. GULABCHAND [REFERRED TO]
S SHANMUGAM PILLAI AND OFHERS VS. K SHANMUGAM PILLAI [REFERRED TO]
TEK CHAND VS. STATE OF HARYANA [REFERRED TO]
JALAJA SHEDTHI VS. LAKSHMI SHEDTHI [REFERRED TO]
NAVNEET LAL ALIAS RANGI VS. GOKUL [REFERRED TO]
V TULASAMMA VS. SESHA REDDY [REFERRED TO]
BAI VAJIA VS. THAKORBHAI CHELABHAI [REFERRED TO]
KRISHNABAL BHRITAR GANPATRAO DAHMLIKH VS. APPASAUEB TARAMARAO NIMBALKAR [REFERRED TO]
KALYANI VS. NARAYANAN [REFERRED TO]
MADHUSUDAN DAS VS. NARAYANIBAI [REFERRED TO]
STATE OF BIHAR VS. RADHA KRISHNA SINGH [REFERRED TO]
BHAGWANT P SULAKHE VS. DIGAMBAR GOPAL SULAKHE [REFERRED TO]
GULWANT KAUR VS. MOHINDER SINGH [REFERRED TO]
BHURA VS. KASHI RAM [REFERRED TO]
GUMPHA VS. JAIBAI [REFERRED TO]
C MASILAMANI MUDALIAR VS. IDOL OF SRI SWAMINATHASWAMI SWAMINATHASWAMI THIRUKOIL [REFERRED TO]
USHA SUBBARAO VS. B N VISHVESWARAIAH [REFERRED TO]
JANKI NARAYAN BHOIR VS. NARAYAN NANDEO KADAM [REFERRED TO]
SASHI JENA VS. KHADAL SWAIN [REFERRED TO]
KARAN SINGH VS. STATE OF JAMMU and KASHMIR [REFERRED TO]
SHAKUNTALA DEVI VS. KAMLA [REFERRED TO]
SHARAD SUBRAMANYAN VS. SOUMI MAZUMDAR [REFERRED TO]
SADHU SINGH VS. GURDWARA SAHIB NARIKE [REFERRED TO]
BENGA BEHERA VS. BRAJA KISHORE NANDA [REFERRED TO]
HARDEO RAI VS. SAKUNTALA DEVI [REFERRED TO]
BABU SINGH VS. RAM SAHAI ALIAS RAM SINGH [REFERRED TO]
K LAXMANAN VS. KKAYIL PADMINI [REFERRED TO]
BHAGWAN KRISHAN GUPTA VS. PRABHA GUPTA [REFERRED TO]
GADDAM RAMAKRISHNAREDDY VS. GADDAM RAMI REDDY [REFERRED TO]
JAGAN SINGH DEAD THROUGH LRS VS. DHANWANTI [REFERRED TO]
GOSTHA BEHARI BERA VS. HARIDAS SAMANTA [REFERRED TO]
ADIYALATH KATHEESUMMA VS. ADIYALATH BEECHU ALIAS UMMA [REFERRED TO]
K PERAMANAYAKAM PILLAI VS. S T SIVARAMAN [REFERRED TO]
APPAN PATRACHARIAR VS. VSSRINIVASACHARIAR [REFERRED TO]
GADADHAR CHOWDHURY VS. SARAT CHANDRA CHAKRAVARTY [REFERRED TO]
AIYYAGARI VENKATARAMAYYA VS. AIYYAGARI RAMAYYA [REFERRED TO]
MOHAMMAD KHALIL KHAN VS. MAHBUB ALI MIAN [REFERRED TO]
KRISHNAYYA SURYA RAO BAHADUR GARU VS. VENKATA KUMARA MAHIPATHI SURYA RAO BAHADUR GARU, RAJAH OF PITTAPUR [REFERRED TO]
VIRGO INDUSTRIES P LTD VS. VENTURETECH SOLUTIONS P LTD [REFERRED TO]
SHIVDEV KAUR VS. R.S. GREWAL [REFERRED TO]
JUPUDY PARDHA SARATHY VS. PENTAPATI RAMA KRISHNA & ORS [REFERRED TO]
DR. K.S. PALANISAMI (DEAD) THROUGH LRS. VS. HINDU COMMUNITY IN GENERAL AND CITIZENS OF GOBICHETTIPALAYAM AND OTHERS [REFERRED TO]


JUDGEMENT

K.M.JOSEPH, J. - (1.)One R. Venkitusamy Naidu had two sons and five daughters. Lakshmiah Naidu and Rangaswami Naidu were the sons of R. Venkitusamy Naidu. Rangaswami Naidu was married to one R. Krishnammal. They had no issues. Lakshmiah Naidu had four sons, viz., Bakthavatsalam,Venkatapathy, Jagannathan and Ramaswamy. Two civil suits have generated these appeals by special leave before us. O.S. No. 649 of 1985 has been filed by those who claimed under Lakshmiah Naidu whereas the plaintiff in O.S. No. 89 of 1983 is one of legatees under a Will allegedly executed by Rangaswami Naidu. The plaint schedule properties in both the civil suits are the same.
(2.)The first suit, viz., O.S. No. 649 of 1985 (as the said suit was initially filed as O.S. No. 2063 of 1982 and it is re-numbered as O.S. No. 649 of 1985) was filed to declare the title of the plaintiffs to the suit property and for injunction against the defendants in the suit properties. The relief sought inter alia in O.S. No. 89 of 1983 are as follows:-
"(a) declaring the title of the plaintiff to an l/3rd share of the properties described in Schedule I, hereunder or l/4th share in the properties, described in Schedule II hereunder:

(b) directing the partition of the properties described in schedule I into three equal shares with reference to good and bad soil and granting separate possession to the plaintiff one such share or in the alternative directing a partition of the properties described in Schedule II into four equal shares with reference to good and bad soil and granting separate possession to the plaintiff one such share;

(c) appointing a commissioner to effect the division;

(d) directing defendants 4 to 11 to pay the plaintiff Rs .15,000.00 as past mesne profits.

(e) directing an enquiry into future mesne profits from the date of suit till delivery of possession and pass a decree for such amount as may be determined on enquiry;

xxx xxx xxx."

A CHEQUERED HISTORY; FIRST STAGE

(3.)This litigation has a chequered history. It all began way back in the year 1955. Proceedings under Section 145 of the Code of Criminal Procedure, 1898 (for short "CrPC") came to be initiated before the First Class Magistrate, Coimbatore as M.C. No. 1 of 1955 and M.C. No. 8 of 1955. Krishnammal, the widow of Rangaswami Naidu was A' Party. This was on the basis of the report of the Sub- Inspector of Police dated 04.07.1955 to the effect that there was a dispute regarding the possession of Survey No. 613/04 and 614/03 of Uppilipalayam Village. 'A' party no. 1 was R. Krishnammal, the widow of Rangaswami Naidu. 'A' party no. 2 was the nephew of 'A' party no. 1 and the executor of the Will. 'B' party no. 1 was the elder brother of Rangaswami Naidu, viz., Lakshmiah Naidu. 'B' party nos. 2 to 4 were the sons of Lakshmiah Naidu.
The case set up by 'A' party was in brief as follows:

There was a partition in the year 1932 between B party no. 1 and the late Rangaswami Naidu. Rangaswami Naidu also purchased lands in his own name. He took several lands on lease. A' party, in short, claimed that they were in possession of the land in question. It was, further, the case of 'A' party that Rangaswami Naidu who was under treatment of cancer but returned to Coimbatore after the first course of treatment was over and was staying in the Bungalow at Race Course had executed a will on 10.05.1955. He appointed 'A' party no. 2, viz., the nephew of his wife as executor. He had declared his divided status by way of a notice in newspaper called 'Nava India' dated 10.5.1955. Lakshmiah Naidu, the first among the B party and the brother of Rangaswami Naidu on seeing the notice responded to the same by communication dated 11.05.1955 to the effect that they were undivided and if Rangaswami wanted to get divided he had to intimate the other co-parceners. It is the further case of A party that Rangaswami Naidu had replied on 16.05.1955 pointing out that the stand of Lakshmiah Naidu in his response dated 11.5.1955 was incorrect. It is also alleged that it was acknowledged on 17.05.1955 by B party no. 1. After 10.05.1955 the health of Rangaswami Naidu took a turn for the worse. He left for Bombay on 20.05.1955. He was still conscious of his duties and was corresponding with others. Rangaswami Naidu passed away in the early hours on 01.06.1955. B party has, had on the other hand contended that Rangaswami Naidu and B party were members of the joint Hindu Family. B party no. 1, viz., Lakshmiah Naidu was sufficiently aged and could not attend to all items of work. Rangaswami Naidu and one of Lakshmiah Naidu' s sons were asked to look after the cultivation of fields. The case of partition in the year 1932 was denied. Rangaswami Naidu became unwell and unable to take food from January 1955 and was fed by tube. In short, the contention of B party was that Rangaswami Naidu continued to be an undivided member.

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