THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY A.S.No.4 of 2012 and M.P.No.1 of 2012 Jagadeesan … Appellant In view of the judgment of the Hon’ble Supreme Court of India in Kattukandi Edathil Krishnan Vs. Kattukani Edathil Valsan5, the next date of hearing is fixed before the Trial Court on 23.12.2022 and the parties shall appear before the Trial Court without any further notice on the said date. If any application for the final decree is pending, the same shall be continued. Even in the absence of any final decree application, the Trial Court shall proceed with the final decree proceedings.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 29.11.2022
Judgment Delivered on : 13.12.2022
CORAM :
THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
A.S.No.4 of 2012 and M.P.No.1 of 2012
Jagadeesan … Appellant
Versus
1.Jayalakshmi (Died)
2.Srinivasan
3.Hari
4.Velu
5.Murugesan
6.Unnamalai Ammal (Died)
7.Gaja
8.Dhanapal
9.Manivel
10.S.Suresh Babu
11.G.Anbu
12.P.Jayaraman
13.The Special Grade Panchayath,
Thorapadi, by its Executive Officer,
Thorapadi Village, Vellore Taluk. … Respondents
[ R2 to R5 brought into record as Lrs, of the deceased 1st respondent, viz., Jayalakshmi and R7 & R8 brought into record as Lrs, of the deceased 6th respondent, viz., Unnamalai Ammal, as per Memo dated 22.12.2021 in S.R.No.37854, vide Court order dated 23.12.2021 made in A.S.No.4 of 2012]
Prayer: Appeal Suit filed under Order XLI Rule 1 read with Section 96 of the Code of Civil Procedure, to set aside the Judgment and decree dated 13.07.2011, on the file of the Additional District and Sessions Judge & Fast Track Court, Vellore, by allowing the above appeal and dismiss the suit.
For Appellant : Ms.R.T.Sundari
For Respondents : Mr.T.R.Rajaraman, (for R2 to R5)
: No Appearance (for R7)
: Ms.P.Shanthi, (for R13)
JUDGMENT
A.The Appeal :
This Appeal Suit is filed aggrieved by the Judgment and Decree dated 13.07.2011 delivered by the Additional District Judge, (Fast Track Court) Vellore, in O.S.No.26 of 2016, in and by which, a preliminary decree was passed for the division of the suit property into 20 equal shares and allotment and delivery of possession of 6/20 shares to the plaintiffs and the plaintiffs being permitted to file separate proceedings for the rendition of accounts for the income derived from the suit properties for the three preceding years from the date of filing of the suit under Order XX Rule 18 of the Code of Civil Procedure, and also granting the permanent injunction restraining the defendants from in any manner alienation of the suit property till partition.
B.The plaint :
2. The case of the plaintiffs is that they are the legal heirs of one Govindasamy. The said Govindasamy and the first defendant/Jagadeesan are the sons of one Narayanasamy, through his first wife, namely, Dhanabakiyam. The second defendant/Unnamalaiammal, is the second wife of Narayanasamy, through the said second wife, a daughter, namely, Gaja/ the third defendant, and a son, namely, Dhanapal/the fourth defendant were born. The suit properties were the ancestral properties of the said Narayanasamy and upon his death devolved upon the plaintiffs and the defendants. A family arrangement was also attempted, but, the parties wriggled out of the same. Therefore, the said Govindasamy filed a suit for a partition and separate possession in O.S.No.395 of 1998, which was later transferred and re-numbered as O.S.No.153 of 1996. However, the said suit was dismissed for default for non-appearance. While so, the defendants started acting as per their proclaimed family arrangement and further documents have been attempted to be created. Hence, the suit.
C.The Written Statements:
3. The first defendant filed a written statement stating that, as per the family arrangement dated 09.03.1987, the suit properties have already been divided into metes and bounds. The plaintiffs cannot seek an alternative or fresh partition. The first defendant denied that there was no such item as mentioned under item No.7 in the suit schedule. As a matter of fact, in the family arrangement dated 09.03.1987, in the property described in Schedule ‘B’ thereto, the half share was allotted to the sister of the said Narayanasamy, and they have also filed a suit for partition of their share, in which a compromise was effected and the said sisters are not added as parties in the instant suit. As far as the properties in the possession of the first defendant are concerned, he has been enjoying the same for more than 30 years in his own interest and therefore, he has perfected his title. The said Manickammal and Govindammal, the sisters of the Narayanasamy were allotted the properties and they have also sold their properties to third parties. The first plaintiff’s husband Govindasamy also filed a suit in O.S.No.153 of 1996, which was dismissed, and therefore, the present suit filed by the plaintiffs is hit by Order II Rule 2 and Order IX Rule 9 of Code of Civil Procedure. It is also contended that the suit is barred by limitation and prayed for dismissal of the suit.
3.1 Another written statement was filed on behalf of the third defendant, which was adopted by defendants 2 and 4, as per the same, the properties are self-acquired properties of the defendant’s father Narayanasamy. There is no partition between the first plaintiff’s husband and the said Govindasamy and the first and fourth defendants. As per the Hindu Succession Act, the third defendant is also entitled for 1/5th share and the plaintiffs are also entitled for 1/5th share. The first defendant is not having any right to encumber or alienate the suit property and the alienation mentioned in the plaint will not bind the defendants.
3.2 The sixth defendant contested the suit by filing a separate written statement. As per the sixth defendant, the properties are already partitioned and ‘A’ Schedule property was allotted to the share of the said Govindasamy and Koorchit is binding on the plaintiffs and already the suit filed by the said Govindasamy is dismissed. The sixth defendant is the bona-fide purchaser and therefore, prayed for dismissal of the suit.
D. The Issues :
4. On the strength of the above said pleadings, issues were framed on 17.10.2006, and additional issues were framed on 24.07.2009, and 24.11.2010, however, they were finally re-casted on 21.06.2011, which were as follows:-
“1.Whether the suit properties are the joint family properties and whether the plaintiffs are entitled to claim partition ?
2. Whether there was an attempt for a family arrangement of the joint family properties in the year 1987 as contended by the plaintiffs?
3. Whether there was partition of both landed and house properties on 11.03.1987 as contended by the 1st defendant?
4. Whether it is true that the 1st defendant was allotted 1 acre 45 cents as claimed by him?
5. Whether there was a suit O.S.No.274 of 1947 as contended by the 1st defendant and whether it is true that 1 acre 45 cents was given to Manickammal and Pachaiammal?
6. Whether the sisters Manickammal and Pachaiammal of the Late. Narayanasamy, father of Late Govindasamy and 1st defendant had any right in the suit properties belonging to Narayanasamy?
7. Whether the suit proceedings in O.S.No.274 /1947, the alleged sale deeds dated 16.11.1964 and 07.12.1965 are fraudulent and created in collusion as contended by the plaintiffs?
8.Whether the previous proceedings in O.S.No.153 /1996 is hit by the principle of res judicate and Order II Rule 2 of C.P.C, and barred by Order IX Rule 9 of C.P.C, as contended by the first defendant?
9. Whether the suit is barred by Limitation and the 1st defendant has perfected title by adverse possession?
10. To what relief the plaintiffs are entitled? ”
E.The Evidence :
5. On the said issues the parties let in evidence, the fifth plaintiff was examined as P.W.1 and One Sathasivam was examined as P.W.2, and on behalf of the plaintiffs, Exs.A-1 to A-15 were marked. The first defendant was examined as D.W.1 and on behalf of the defendants, Exs.B-1 to B-4 were marked.
F.The findings of the Trial Court :
6. Thereafter, by a Judgment dated 13.07.2011, the Trial Court proceeded to consider the case of the parties and found that the defendants have not produced the compromise decree or Judgment in the said suit and therefore, the sale under Ex.B-1 & B-2 were sham and nominal and will not be binding on the plaintiffs. The Trial Court further found that the plaintiffs have proved the properties as joint family properties and even though the family arrangement was attempted and it was an unregistered document, no partition can be effected by the same. Therefore, the Trial Court held that the plaintiffs would be entitled for their share and separate possession thereof. The Trial Court also rejected the contentions in that view of the dismissal of the earlier suit, and therefore, the present suit is hit by Res judicata. Therefore, it finally held that the suit properties have to be partitioned into 20 equal shares and the plaintiffs are together entitled for 6/20 shares and the first and the fourth defendant each are entitled to 6/20 shares and the second and the third defendant are entitled to 1/20 share in the suit properties and answered the issues accordingly. Aggrieved by the preliminary decree passed, the first defendant has filed the present Appeal Suit.
G.The Submissions :
7. Heard Ms.R.T.Sundari, learned Counsel for the Appellant and Mr.T.R.Rajaraman, learned Counsel appearing for the Respondents Nos.2 to 7, and Ms.P.Shanthi, learned Counsel appearing for the Respondent No.13.
7.1 Ms.R.T.Sundari, learned Counsel for the Appellants would submit that the family arrangement has been duly marked and the same is signed by the parties. Pursuant thereto all the brothers have been enjoying their shares. Therefore, the Trial Court ought not to have granted the decree for partition once again. The learned Counsel also submitted that the defendants have marked copies of the registered sale deed executed by Manickammal and Pachaiyammal in favour of the third parties and unless the said sisters/subsequent purchasers are impleaded, the suit is bad for non-joinder of necessary parties. She would contend that the Trial Court has held that the sale is a sham and nominal in the absence of the said parties. She would submit that when the deceased/Govindasamy has filed the earlier suit and when the same was dismissed for default, by virtue of Order IX Rule 9 once again a fresh suit in respect of the same relief will not lie. Therefore, she prayed that the suit be dismissed.
7.2 Per contra, Mr.T.R.Rajaraman, the learned Counsel appearing on behalf of the respondents would submit that, the plea that the suit is barred by Res judicata and is not maintainable as the earlier suit was dismissed for default. In a suit for partition, unless the properties were divided, the plaintiff cannot be non-suited on hyper-technical pleas. He would submit that after the death of Govindasamy, they have independent rights as the legal heirs of the said Govindasamy, and therefore, they cannot be precluded from filing the present suit. The learned counsel would submit that, in actuality, no partition by metes and bounds had taken place pursuant to the earlier attempted family arrangement and the same cannot bind the parties. As a matter of fact, certain properties were also not included in the said family arrangements. The learned Counsel would submit that the Trial Court has correctly appreciated the issues and granted the decree. In support of his contentions, the learned Counsel also relied upon the Judgment of the Hon’ble Supreme Court of India, in R.M.Sundaram @ Meenakshisundaram Vs. Sri Kayarohanasamy and Neelaydhakshi Amman Temple (Through its Executive Officer) Nagapattinam, Tamil Nadu1, more specifically relying on Paragraph Nos.29 to 38, to contend that in the instant case, the principles of Res Judicata, as well as Order II Rule 2 of CPC., will not apply. The learned Counsel also relied upon the Judgment of the Hon’ble Supreme Court of India, in M.Venkatramana Hebbar (Dead) by Lrs., Vs. M.Rajagopal Hebbar and others2, to contend that unless the actual partition by metes and bounds had taken place, the family settlement cannot be a ground to reject the case of the plaintiff.
G. Points for consideration :
8. Upon considering the submissions made on behalf of both sides and perusal of the material records, the following questions arise for consideration in the instant case :-
“(i) Whether the suit is liable to be dismissed on the basis of Ex.B-1, partition deed, dated 09.03.1987?
ii) Whether the suit is filed by the plaintiff is liable to be dismissed as barred under Order IX Rule 9 and Order II Rule 2 and Section 11 of the Code of Civil Procedure?
iii) What is the nature of the suit properties and what shares the parties are entitled to ?
iv) Whether the suit is liable to be dismissed for non-joinder of necessary parties, namely, Manickammal and Pachaiyammal or their legal heirs or the purchasers under Ex.B-1 & B-2?
v) To what relief the parties are entitled to?”
H. Point No. (i)
8.1 As far as Ex.B-1, partition deed dated 09.03.1987 is concerned it is an unregistered document. An unregistered Koorchit/family arrangement can be accepted as a valid document, if only it records an oral partition effected between the parties. But, in this case, the relevant portion of Ex.B-1, which reads as under:-
“///// ,jdoapy; rhTp& ifbahg;gk; bra;Js;s g”;rhaj;jhuu;fs; bra;j jPu;khdg;gof;F ehk; K:tUk; kdg;g{h;tkha; rk;kjpj;J xg;g[f;bfhz;L A. B. C broa{y;fshf ehk; K:tUk; ghfk; gpupj;Jf;bfhz;L A broa{ypy; fz;l U:gha; 71280-? bghUkhd fpykhd jl;nlhL tPL brhj;ij ek;kpy; 1 yf;fkpl;l N/nfhtpe;jrhkpa[k; B. broa{ypy; fz;l U:gha; 5225-? bghUkhd g[“;ir epyk; fpzu; tifauh brhj;ij ek;kpy; 2 yf;fkpl;l N/b$fjPrDk;. C broa{ypy; fz;l U:gha; 72830-? bghUkhd fpykhd jl;nlhL tPL brhj;ij ek;kpy; 3 yf;fkpl;l N/ jdghYk; nkw;go mtu; mtu;fs; ghfbrhj;ij mtu; mtu;fns ru;tRje;jpu ghj;jpakha; g[j;jpu gt[j;jpu ghuk; gupakha; jhBjp tpspka tpf;fpiua’;fSf;F nahf;fpakha mth; mth;fs; ,c&;lk; nghy; Mz;L mDgtpj;Jf; bfhs;s ntz;oaJ/ ”
Thus, it can be seen that that document actually effects partition and therefore it is compulsorily registrable as per Section 17 of the Registration Act, and cannot be looked into by the Court. Therefore, on the basis of Ex.B-1/ family arrangement, the relief of partition cannot be rejected and accordingly the point is answered.
I. Point No. (ii) :
8.2 It is true that the first plaintiff’s husband Govindasamy had earlier filed a suit in O.S.No.153 of 1996 for partition. But, it is seen that the same was dismissed for non-appearance of the plaintiff in the suit. Therefore the principles of Res Judicata would not apply as the issues were not determined on merits. Similarly, the principles of Order II Rule 2 of the Code of Civil Procedure will not apply, as this is not a case for claiming different relief on the same cause of action. As far as the contention regarding the Order IX Rule 9 of the Code of Civil Procedure, though in the ordinary course, the dismissal of the suit filed by the first plaintiff’s husband and father of the plaintiffs 2 to 6 would bind on the plaintiffs and they will be barred in bringing the fresh suit for the same relief, this is a case of partition. In the present suit, defendants 2 to 4 have also pleaded for partition. This Court in Balamani Vs. S. Balasundaram3, had held that the cause of action in a suit for partition being a continuing one and all the plaintiffs being defendants and defendants being the plaintiffs, the suit cannot be dismissed under Order IX Rule 9 of C.P.C. The properties remain to be partitioned. As such, the plaintiffs cannot be non-suited for the dismissal of the earlier suit. Accordingly the point is answered.
J. Point No. iii :
8.3 It can be seen that suit properties are purchased by the said Narayanasamy, vide Ex.A-10 and A-14. The plaintiffs are the parties alleging that the suit properties are joint family properties. They have not let in any evidence that there were any ancestral or joint family properties or joint family nucleus from which the suit properties could have been purchased. The Trial Court without any discussion simply accepted the case of the plaintiff and the first defendant as if the suit properties are ancestral properties, while it is the contention of the third defendant that the suit properties are the ancestral properties. It is too well settled that it is for the party who alleges that the properties are ancestral in nature to prove the same. Useful reference in this regard can be had to the Judgment of the Hon’ble Supreme Court of India in D.S. Lakshmiah Vs. Balasubramanyam4. The suit properties can be termed as ancestral properties if only the said Govindsamy, the first defendant and the other children had a right by their birth. Useful reference in this regard can be made to the Judgment of this Court in D.T. Rajkapoor Sah @ Ragul Sah & others Vs. Kamakshi Bai & others (A.S. No. 429 of 2016 – Judgment dated 30.11.2022).
8.4 The plaintiff’s themselves have produced Ex.A-10 and A-14 from which it is clear that the entire suit properties are purchased by Narayanasamy as two undivided half shares. Thus, I hold that the suit properties are the self-acquired properties of Narayanasamy.
8.5 The said Narayanasamy is said to have died 3 months after Ex-B1, that is in the year 1987. It is seen from the reading of the evidence that he was first married to one Dhanabaggiam and after her death, he married Unaamalai Ammal. He had two sons Govindsamy and Jagadeesan through the first wife. He had one daughter Gaja and one Son Dhanapal through the second wife. Admittedly he died intestate. Therefore, his wife and plaintiffs are jointly entitled for 1/5 share in the suit properties. The defendant 1 to 4 are also entitled for 1/5 share each in the suit properties. Accordingly, the point is answered.
K. Point No. (iv):
8.6 It is the case of the first defendant that ½ share of the suit properties was allotted to the share of the sisters of Narayanasamy and they have also dealt with the sold the properties to third parties vide Ex. B2 & B3 sale deeds and therefore the entire suit should be dismissed for non-joinder of necessary parties. It is for the first defendant to prove the same. First, it can be seen that the properties are the self-acquired properties of Narayanasamy. Second, it is pleaded that they filed a suit for partition in O.S.No.274 of 1947 in which a compromise is said to have been recorded by which they were granted the properties. A copy of the same was not produced before the court. The only proof produced were Ex.B-2 & B-3 sale deeds. A reading of the Ex.B-2, it is clear that the first sister Manickammal is claiming 0.67 cents in S.No.356/4 with 1/6th right of irrigation in the well and land in S.No.356/8. Similarly, in Ex.B-3, the second sister Pachaiyammal is claiming 0.67 cents in S.No.356/6 with 1/6th right of irrigation in the well and land in S.No.356/8. Unless the said vendors or the persons claiming through her or the purchasers are parties to the suit, the question, whether there was any right, whether the sale is valid or not, cannot be decided in the present suit. Therefore, the Trial Court is not right in holding the sale by the sisters as a sham and nominal in the absence of the said vendors or purchasers as parties to the suit. When Ex-B2 & B-3, registered sale deeds of the years 1964 and 1965 are produced, in the absence of the concerned Vendor or Purchaser, it cannot be brushed aside as ‘sham and nominal’. If really it is so, then the plaintiffs ought to have impleaded them and when the involvement of third-party rights is apparent from the evidence on record, then, in their absence, a decree for partition cannot be passed. Whether it is true or sham and nominal cannot be decided without them being parties to the suit. However, except to hold that the plaintiffs will not be entitled for partition to the said extent, it cannot be said that the suit itself is to be dismissed for non-joinder of the necessary parties. Therefore, to the said extent the Judgment of the Trial Court needs modification and the point is answered accordingly.
L. Point No.(iv):
8.7 Thus, the suit is liable to be dismissed in respect of 0.67 cents in item No.3 of the suit schedule property in S.No.356/4 and in respect of 0.67 cents in respect of item No.4 of the suit schedule property in S.No.356/6 and in respect of 2/6th share in item No.6 of the suit property in S.No.356/8. In respect of the rest of the properties, the plaintiff’s jointly will be entitled to 1/5th share. Similarly the defendants 1 to 4 will be entitled to 1/5th each. Accordingly, this question is answered.
9. In view of my above findings, the finding of the Trial Court regarding the issue No.1 that the suit properties are joint family properties is reversed and it is held that suit properties are self-acquired properties of Narayanasamy. That there was only an attempt of family arrangement and it did not fructify in respect of the issue No.2 is confirmed for the reasons of Ex.B-1, is not a registered document. The further findings of the Trial Court in respect of issue No.3 & 4, that the properties were not partitioned and allotted to the first defendant are confirmed. As far as the issue No.5 & 7 are concerned, when the concerned parties are not impleaded it cannot be decided that the sales in Ex.B-2 and B-3 are sham and nominal and to that extent, those properties are excluded from partition. As far as the issue No.8 is concerned, the finding of the Trial Court, the present suit is not barred under Order II Rule 2 or Order IX Rule 9 or Res judicata is confirmed. The finding of the Trial Court that the suit is not barred by limitation and the defendants had not perfected by adverse possession in respect of issue No.9 is confirmed. As far as the issue No.10 is concerned, the relief granted by the Trial Court is modified as stated supra.
M. The Result :
10. In the result, the Appeal Suit in A.S.No.4 of 2012 is partly allowed :
(i) The Judgment and Decree in O.S.No.26 of 2006 dated 13.07.2011 passed by the Additional District Judge, Fast Track Court, Vellore, is set aside;
(ii) The O.S.No.26 of 2006, on the file of the Additional District Court, Fast Track Court, Vellore District, is decreed on the following terms:
a) That the suit is hereby dismissed, in respect of an extent of 0.67 cents each in item Nos. 3 (Survey No.356/4) & 4 (Survey No.356/6) of the suit property and 2/6th share in respect of item No. 6 (Survey No. 356/8) of the suit properties already sold under Ex-B2 and B-3;
b) in respect of other items of the suit properties, the plaintiffs are entitled for partition and the suit properties are directed to be divided into 5 equal shares by metes and bounds and the plaintiffs are jointly allotted 1/5 shares and will be entitled for separate possession and enjoyment;
c) That the plaintiffs are permitted to file separate proceedings to render accounts of the income derived from the suit properties for the three years preceding the date of filing of the suit under Order XX Rule 18 of the CPC;
d) That the defendants are restrained by means of permanent injunction from alienating the suit properties till the partition;
e) That the parties do bear their respective costs.
(iii) In view of the judgment of the Hon’ble Supreme Court of India in Kattukandi Edathil Krishnan Vs. Kattukani Edathil Valsan5, the next date of hearing is fixed before the Trial Court on 23.12.2022 and the parties shall appear before the Trial Court without any further notice on the said date. If any application for the final decree is pending, the same shall be continued. Even in the absence of any final decree application, the Trial Court shall proceed with the final decree proceedings.
(iv) There will be no orders as to costs in the Appeal Suit also;
(v) Consequently, the connected miscellaneous petition is closed.
13.12.2022
Index : Yes
Speaking order
klt
To
1.The Additional District and Sessions Court, Fast Track Court, Vellore.
2.The Section Officer, V.R.Section, High Court of Madras.
D.BHARATHA CHAKRAVARHY, J.
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Pre-Delivery Judgment in
A.S.No.4 of 2012
and
M.P.No.1 of 2012
