Daivasigamani(Died) v. Kamalammal

IN THE HIGH COURT OF JUDICATUE AT MADRAS

DATED : 27.06.2019

CORAM

THE HONOURABLE MR. JUSTICE N.SESHASAYEE S.A.No.83 of 2004

1. Deivasigamani (Died)

2. Nalayini

3. Thamizharasi

4. Bhaskaran

5. Mahalakshmi

6. Kumaran ... Appellants/2nd Defendants (Appellants 2 to 6 brought on record as legal representatives of the deceased sole appellant vide Order of Court dated 24.06.2019 made in C.M.P.No.3137 to 3139 of 2019 in S.A.No.83 of 2004.

Vs.

1.Kamalammal 2.Kannan 3.Dayalan(Died) 4.Selvan 5.Muniyammal 6.Renuka

7. Jamuna @ Thenmozhi

8. Priyadarshinii (Respondents 6 to 8 brought on record as legal representatives of the deceased 3rd respondent vide Order of Court dated 24.06.2019 made in C.M.P.No.428 of 2012 in S.A.No.83 of 2004.

... Respondents/Plaintiff Prayer: Second Appeal is filed under Section 100 of code of Civil Procedure against the Judgment and Decree dated 18.08.2003 made in A.S.No.23 of 2003 on the file of the Principal District Judge, Vellore District, Vellore confirming the Judgment and Decree dated 20.02.2003 made in O.S.No.182 of 1999 on the file of the Sub-ordinate Judge, Gudiyatham, Vellore District.

For Appellants : Mr.T.Dhanyakumar For 1st Respondent : Mr.K.A.Ravindran For Respondents 2 to 8 : No Appearance

JUDGMENT

1. The 2nd defendant in a suit for partition is the appellants herein.

2.1 A certain Govindaraj Gounder died leaving several properties. They are all his self-acquired/personal properties. He died in 1963 leaving behind him surviving his three daughters namely Kamalammal, the plaintiff, Muniyammal and Arpudammal who are respectively defendants 5 and 6, and three sons namely Kannan, the 1st defendant, Deivasigamani, the 2nd defendant/appellant and one Natarajan. Natarajan passed away and his children are defendants 3 and 4.

2.2 The plaintiff would allege that on the demise of Govindaraj Gounder, the properties devolved equally on all the children. While so, the defendants 5 and 6 had earlier laid O.S.No.91 of 1981 for partition, and the suit came to be dismissed as settled out of Court upon the 2nd defendant paying the defendants 5 and 6 herein a sum of Rs.30,000/- in lieu of their share. Therefore, whatever properties that are now available had to be divided into four equal parts and that the plaintiff would be entitled to 1⁄4 share.

2.3 The suit was resisted only by the 2nd defendant. He would allege that some time in 1975, under Ext.B-1 three sons of Govindaraj Gounder have partitioned the property, later in that partition C-schedule was allotted to him that he sold part of C-schedule property to certain other persons. Be that as it may, Natarajan, father of defendants 3 and 4, had filed another suit in O.S.No.121 of 1987 for partition, and that suit came to be resisted by contending that the plaintiff would not be entitled to any share. 3.1 Appreciating the evidence before it, the trial Court passed a preliminary decree for 1/6 share for the plaintiff. In its judgment, it has referred to the suit earlier filed by the defendants 5 and 6 in O.S.No.91 of 1981 and another suit filed by Natarajan in O.S.No.121 of 1987 and also about the dismissal of the suit in O.S.No.

91 of 1981 as settled out of Court. In particular, the trial Court referred to the testimony of the plaintiff about the settlement arrived between the defendants 2, 5 and 6 whereby the 2nd defendant has paid a sum of Rs.30,000/- to purchase the share of defendants 5 and 6.

same, the 2nd defendant preferred an appeal to the First Appellate Court, which came to be dismissed with identical conclusion as the trial Court has arrived.

4. This appeal was admitted on the following substantial questions of law:

i) Whether the suit is barred by limitation?

ii) Whether the plaintiff is precluded from filing the present suit in view of the dismissal of O.S.No.91/81, O.S.No.587/86 and O.S.No.121/87?

iii) Whether the suit for partition is maintainable without impleading all the sharers who are entitled to share in the suit property?

iv) Whether the suit for partition is maintainable without seeking division of all the properties?

v) Whether the suit for partition is maintainable without impleading the alinees?''

5. The learned counsel for the appellant argued : a) That the suit in O.S.No.91 of 1986 came to be dismissed and similar other three suits were laid before the Court were also dismissed. There could not be yet another suit for partition now at the instance of one of the sisters. Secondly, when both the plaintiff and the 2nd defendant agreed that the suit laid by the defendants 5 and 6 in O.S.No.91 of 1981 was dismissed and that as per the terms of the settlement, the 2nd defendant had paid a sum of Rs.30,000/- to these defendants, the Courts below at least ought to have considered this.

b) He added that the 2nd defendant/appellant herein has sold a sizable portion of the suit property, and one of his purchasers is the daughter of the plaintiff herself whom the 1st defendant has married.

6. Heard the learned counsel for the learned counsel for the 1st respondent.

7. The suit is for partition. If the properties are divisible that does not freeze the right to whom the property was alloted to get a cause of action to file a suit. Therefore, the first substantial question of law framed necessarily has to be decided against the appellants.

8. So far as the second point canvassed by the appellants is concerned, this relates to the shares of defendants 5 and 6. They did not choose to contest the present suit. Here, one fact where both the plaintiff and the 2nd defendant are in agreement is that the 2nd defendant had paid Rs.30,000/- to the defendants 5 and 6 owing to which they have given up their suit for

partition in O.S.No.91 of 1981. Whether the money was actually given or in what circumstances, the suit came to be dismissed or what are the terms of the settlement is something that chiefly concerned about defendants 5 and 6. Since they did not appear to explain to this Court what is their stand on the same, their right to question the terms of settlement is forfeited. If this settlement is goes as an admitted fact, then the shares of defendants 5 and 6 should go to the advantage of the 2nd defendant. Then his share would enlarge from 1/6 share as granted by the decrees of the Courts below to one 1/2 share. However, this would at any rate affect the shares of the plaintiff in terms of the decrees of the Courts below.

9. Turning to the third point about certain sales made by the 2nd defendant are concerned, this is something that has to be workout in the final decree application. Therefore, to avoid the complications as directed by this Court in Rajendran and others Vs. Mohanambal [2018-6-CTC-483 = 2018-8-MLJ-649], the trial Court must ensure that all the purchasers of the properties are duly impleaded in the final decree proceedings which may be filed by any one of the sharers of the property.

10. The learned counsel for the 1st respondent submitted that the plaintiff had already filed an application in I.A.No.477 of 2004 in O.S.No.88 of 2004, the Advocate Commissioner who visited the property filed his report however, since the purchasers in whose favour the equity may flow in a final decree to be passed in the said I.A.No.477 of 2004, the plaintiff must be directed to implead them if she is interested in prosecuting the said I.A.No.477 of 2004.

11. It is yet to be seen whether the 2nd defendant has paid any Court fee for passing preliminary decree of his share in the property. Therefore, this Court finds nothing to alter the decree passed and the present appellant is free to move the trial Court to pass a preliminary decree of his share as shown in this judgment by paying appropriate Court fee.

12. In the result, this Second Appeal is dismissed and the Judgment and Decree of the Principal District Judge, Vellore District, Vellore dated 18.08.2003 passed in A.S.No.23 of 2003 dismissing the appeal confirming the Judgment and Decree of the Sub-ordinate Judge, Gudiyatham, Vellore District in O.S.No.182 of 1999 dated 20.02.2003 are hereby confirmed. No costs. Sd/- Assistant Registrar(CS V) //True Copy// Sub Assistant Registrar

ssn To

1. The Principal District Judge, Vellore District, Vellore.

2. The Sub-ordinate Judge, Gudiyatham, Vellore District.

3. The Section Officer, V.R.Section, High Court, Madras.

+2cc to Mr.T.Dhanyakumar, Advocate sr.54661, 54243 +1cc to Mr.K.A.Ravindran, Advocate sr.53734 S.A.No.83 of 2004 vgii(co) nr 22/01/2020