Madras High Court
Sri Brahadambal Agency A Partnership ... vs S.Ramasamy Chettiar (Died) on 22 December, 2015
S.A.No.410 of 2002
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON 21.07.2022
DELIVERED ON 28.07.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.ANANTHI
S.A.No.410 of 2002
1.Sri Brahadambal Agency a partnership firm,
Represented by its Managing Partner, Kumarasmy.
2.R.A.Kumarasamy
3.Indra
4.Shanmugham
5.S.Geetha
6.S.Vallinayagam
7.S.Vanamamalai ...Appellants/Appellant Nos.1 to 3
and 5 to 8/ Plaintiff Nos.1 to 3
& 5 to 8
[Appellant Nos.5 to 7 declared as major and guardianship discharge vide
Court order dated 22.12.2015]
Vs
1.S.Ramasamy Chettiar (Died)
2.Sethu @ Raghavan
3.R.M.Subramanian (Died)
4.R.M.Chidambaram
5.R.M.Sellappan
6.Adaikkammal Achi (died)
7.Sambantham Chettiar
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S.A.No.410 of 2002
8.R.M.Lakshmi Aachi (died)
9.P.Mallika
10.S.Seetha Lakshmi
11.S.Swaminathan
12.S.Lakshmi
[Respondent Nos.8 & 9 brought on record as LRs of deceased
1st Respondent as per the order of Court dated 09.12.2015]
[Respondent Nos.10 to 12 are brought on record as LRs of the deceased
3rd respondent vide Court order dated 27.01.2022 ]
PRAYER:- Second Appeal filed under Section 100 of Code of Civil
Procedure, to set aside the Judgment and Decree of the learned Principal
District Judge, Pudukkottai, dated 15.12.1999 made in A.S.No.77 of
1995 confirming the Judgment and Decree of the learned Subordinate
Judge, Pudukkottai, dated 13.09.1994 made in O.S.No.163 of 1987 and
to decree the suit as prayed for.
For Appellants :Mr.V.Balaji
For R-2 :Mr.H.Arumugam
For R-10 to R-11 :Mr.S.KParthasarathy
JUDGMENT
The Second appeal has been filed to set aside the Judgment and Decree, dated 15.12.1999 in A.S.No.77 of 1995 passed by the learned Principal District Judge, Pudukkottai, confirming the Judgment and Decree, dated 13.09.1994 in O.S.No.163 of 1987 passed by the learned Subordinate Judge, Pudukkottai.
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2.At trial, one witness was examined as P.W.1 and Exs.A.1 to A.31 were marked on the side of the plaintiffs and the one witness was examined as D.W.1 and Exs.D.1 to Exs.D.22 were marked on the side of the defendants and Ex.C.1 & C.2.
3.Upon consideration of the evidence on record, the learned trial Judge dismissed the suit in O.S.No.163 of 1987.
4.Aggrieved, the same, the plaintiffs have preferred an appeal in A.S.No.77of 1995 and the said appeal was also dismissed. Hence, this Second Appeal.
5.Heard on either side and perused the material documents available on record.
6.For the sake of convenience the contesting parties shall be referred to as Plaintiff and Defendant.
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7.The Points for consideration in this appeal is as follows:
1.Whether the purchase of plaintiffs is valid and plaintiffs are entitled for partition as alleged by them?
2.Whether the 7th defendant is adopted son and has no right to sell the properties to the plaintiff?
8. The appellants herein are the plaintiffs in the suit in O.S. No.163 of 1987 and the respondents herein are the defendants therein. The Second Appeal was originally filed before the Principal Seat, viz., the Madras High Court. Notices were sent to the respondents by the Principal Seat. But except the seventh respondent, none of the respondents have entered appearance. After the formation of the Madurai Bench, due notices were sent to the appellants and respondents. But, excepting the appellants and seventh respondent, no appearance was made by the respondents 1 to 6. During the pendency of the Second Appeal, the first respondent died. Since the respondents 2 to 6, who are the sons and mother of the deceased first respondent were already on record, an application to implead the widow and daughter of the first respondent as respondent Nos.8 and 9 was filed and allowed. Later, the 4/25 https://www.mhc.tn.gov.in/judis S.A.No.410 of 2002 sixth respondent also died and the respondents 2 to 5, 7 to 9 were recognized as her legal heirs. Later, the eighth respondent died and her sons and daughter, the respondents 2 to 5 and 9 were recongised as her legal heirs. The learned counsel appearing for the appellants has filed memo stating that the sixth and eighth respondents had died. In the above said impleading applications, due notices were sent to the respondents and the proposed parties and only after following the due process, the said applications were allowed. After such impleadment, due notice was sent to the respondents 2 to 5 and 9 in the Second Appeal through Court and Post and Private notice was also ordered and the ninth respondent had received the notice, but the respondents 2 to 5 have refused to receive the notice. Hence, substituted service by way of paper publication was made to the respondents 2 to 5. Inspite of service of notice upon the ninth respondent and inspite of sending notice to respondents 2 to 5 as stated above, no appearance has been made for them. Accordingly, the Second Appeal has been taken up for final disposal.
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9.The appellants filed a suit for partition of the suit properties in Item Nos.1 to 11 in 'A' and 'B' Schedule properties by means and bound and to allot 3/5th share.
10. The first plaintiff is a partnership firm which is registered under the Indian Partnership Act. The plaintiffs 2 to 5 are the partners in the said firm. The suit schedule properties comprises of agricultural lands measuring an extent of about 65 acres in Nathampannai Village in Pudukkottai Taluk shown as items 1 to 11 in the suit “A” schedule properties. A farm house and building is shown as suit schedule “B” property. It is the case of the plaintiffs that the suit “A” schedule properties in items 1 to 6 were purchased by one Raman Chettiar under a registered sale deed dated 19.05.1923. The suit “A” schedule properties in items 7 to 11 are the ancestral properties of the said Raman Chettiar. The said Raman Chettiar died leaving behind his two sons namely Chellappa Chettiar and Swaminathan Chettiar to succeed his estate. The said Chellappa Chettiar and Swaminathan Chettiar remained undivided during their life time and enjoyed all the properties in common. The joint family of the above two brothers owned and enjoyed the suit 6/25 https://www.mhc.tn.gov.in/judis S.A.No.410 of 2002 properties along with lands in Rajavayal and Sevalapattivayal etc; as well as a house in Arimalam. The said Chellappa Chettiar died issueless. Swaminathan Chettiar had two sons namely Ramasamy Chettiar, the first defendant and Sambantham Chettiar, the seventh defendant.
11.It is the further case of the plaintiffs that during the lifetime of Swaminathan Chettiar, the property situated in Rajavayal and Sevalapattivayal were divided and allotted to his two sons. At the time of the said partition, Sambantham Chettiar, the seventh defendant was allotted 10 acres in excess. In order to compensate the same Ramsamy Chettiar, the first defendant was allotted 10 acres of land in Pallathuvayal out of the total extent of land measuring 74.07 acres, leaving behind the 65.87 acres of land in Pallathuvayal, hereinafter referred to as the suit “A” Schedule property, to be enjoyed in common by the two brothers namely the defendants 1 and 7.
12.The defendants 1 and 7 were each entitled to half share in the said 65.87 acres of land and it is the case of the plaintiffs that some dispute arose between the brothers with regard to the maintenance of the 7/25 https://www.mhc.tn.gov.in/judis S.A.No.410 of 2002 said land and this resulted in a panchayat and the brothers have agreed to partition the said land into two equal halves within three months under an agreement dated 20.02.1978 entered into between them. However, the said agreement had not materialised due to the non cooperation by the first defendant.
13.Under such circumstances the said Sambantham Chettiar, the seventh defendant sold his half share in the suit properties to the plaintiffs firm. The Plaintiff firm at the time of purchase of the suit properties comprised of plaintiffs 2 to 4 and one K. Kalyanasundaram as partners of the firm. The said K.Kalyanasundaram had retired from the firm and had executed a release deed dated 15.04.1984. Subsequent to his resignation, the plaintiffs firm was reconstituted with plaintiffs 2 to 4 and the fifth plaintiff as partners. The plaintiff firm purchased half share in the suit properties from the seventh defendant under a registered sale deed dated 16.02.1983. The first defendant and his sons, the defendants 2 to 5 are jointly entitled to the other half of the suit properties. It is the further case of the plaintiffs that the fifth defendant sold his 1/10th share in the suit properties to the plaintiffs herein for a valuable sale 8/25 https://www.mhc.tn.gov.in/judis S.A.No.410 of 2002 consideration under the registered sale deed dated 19.10.1983. Thus, plaintiffs are entitled to (1/2)5/10+1/10=6/10=3/5th share in the suit properties by virtue of the registered sale deeds dated 16.02.1982 and 19.10.1983.
14.Further, the sixth defendant who is the mother of defendants 1 and 7, along with her husband had given up their rights in the suit properties by way of family arrangement in favour of defendants 1 and 7 and the same is evidenced by a letter dated 30.01.1979. Therefore the sixth defendant is not entitled to any share but impleaded only as a proper party.
15.According to the plaintiffs they have requested the defendants on various occasions to effect partition amicably but they were evading. Hence, the plaintiffs have filed the suit for partition in items 1 to 11 of the suit “A” and “B” Schedule properties by mets and bounds and allot 3/5th share to them.
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16.The crux of the defendants case is that the plaintiffs firm is not a registered firm. The defendants 1 and 7 are divided brothers and since Chellappa Chettiar did not have any issues, the seventh defendant was given in adoption to the widow of Chellappa Chettiar. The suit properties are not joint family properties. The lands in Rajavayal and Pallathuvayal were divided among the Chellappa Chettiar and Swaminathan Chettiar. The seventh defendant was allotted 80 acres of land in Rajavayal out of which 50 acres were taken by the Government under the Land Ceiling Act and the balance 30 acres, the seventh defendant had sold it to various persons. Further, the land in Pallathuvayal is allotted only to the share of Swaminathan Chettiar and the first defendant alone is entitled to it and the seventh defendant has no share in the said lands. After being given in adoption to wife of Chellappa Chettiar as per custom of Nattukotai Nagarathar, the seventh defendant cannot make any claim in share allotted to Swaminathan Chettiar.
17.It is also the case of the first defendant that in O.P.No.5 of 1984 filed before the Subordinate Court, Pudukkottai, the seventh defendant filed an application to implead himself as a legal heir of 10/25 https://www.mhc.tn.gov.in/judis S.A.No.410 of 2002 Swaminathan Chettiar in the said proceedings. However, he was not impleaded as he is the adopted son of Chellappa Chettiar. Further, it is also stated that the sale deed executed by the fifth defendant has been executed under influence of seventh defendant and on the promise to get him a job in Indian Bank and therefore the said sale deed is void. It is the further case of the first defendant that he had entered into an agreement of sale with the plaintiffs in respect of 10 acres in S.No.97/l, Patta No. 460 Pallathuvayal for a sum of Rs.3.5 lakhs on 12.12.1982. Since the plaintiffs have not paid the amounts within the time stipulated under the contract, the first defendant has sold the said land in favour of 6 persons belonging to the Nizam's family on 25.05.1984 and 26.05.1984. The plaintiffs then filed a suit for specific performance in O.S.No.86 of 1985 and also sought for Rs.3,00,000/- as compensation. The Court had held that the sale made by the defendants 5 and 7 is invalid and not supported by valid consideration. Pursuant to the said order, the Nizam family members had sold the properties to various third parties and they have not been made as a party to this present suit and thus the suit is bad for non joinder of necessary parties.
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18.Further, it is the case of the first defendant that the sale deed executed by the fifth defendant is not supported by valid consideration and therefore it is sham and nominal. The defendants 2 to 5 had given power to first defendant. The fifth defendant had cancelled the power at the instructions of seventh defendant and the same is invalid. The agreement dated 20.02.1978 is false and the letter dated 30.01.1979 is not true and concocted. The suit is barred by Order 2 Rule 2 of C.P.C. as the plaintiffs ought to have claimed the present relief of partition in the earlier suit in O.S.No.86 of 1985 and O.P. No.5 of 1984 and thus the present suit is bad. The Court fee paid by the plaintiffs is not correct and they are not in joint possession with the first defendant. Therefore, the suit filed by the plaintiffs for partition on the basis of sale deeds executed by seventh defendant and fifth defendant is not valid. Though the fourth defendant had filed written statement has remained exparte after filing written statement.
19.On the side of the plaintiffs the Managing partner of the firm was examined as PW1 and Exhibits A1 to A31 were marked. On the side of 12/25 https://www.mhc.tn.gov.in/judis S.A.No.410 of 2002 the defendants, the first defendant examined himself as DW1 and Exhibits B1 to B22 were marked. An Advocate Commissioner was appointed to value the suit?B? schedule properties and his report was marked as C1 and C2.
20.Both the parties have admitted that the properties are belonged to one Raman Chettiar by purchasing and ancestral relationship of the defendants also admitted. Raman Chettiar had two sons, namely;
1.Chellappa Chettiar and 2.Swaminathan Chettiar. Without issues Chellappa Chettiar died. Swaminathan Chettiar has two sons, namely;
1.Ramasamy Chettiar and 7th defendant Sambandam Chettiar. So, the 7th defendant has ½ share in the 'A' schedule properties. The 7 th defendant has sold his share to plaintiff's firm. The 5th defendant is one of the son of Ramasamy Chettiar sold 1/5th share to the plaintiff.
21.The 7th defendant has 1/3 share in the properties. The defendant Nos.1 & 2 have contended that the 7th defendant was given in adoption to the wife of deceased Chellapa Chettiar. So he has no rights in the property. Even if it is true as he is of Raman Chettiar the 7 th defendant as 13/25 https://www.mhc.tn.gov.in/judis S.A.No.410 of 2002 adopted son of Chellappa Chettiar the 7th defendant has also 1/2 share in the suit properties.
22.But the adoption is not proved by the defendant. The 6 th defendant was the best witness as natural mother to speak about the adoption. But, she remained exparte and she died only during second appeal.
23.Neither documentary nor oral evidence produced by the defendants to prove the facts of adoption. As per Ex.A.8, family arrangement between Ramasamy and 7th defendant on 20.02.1978 which document was admitted by D.W.1 clearly shows that the 7th defendant is only with the family of Swaminathan Chettiar. The date of adoption also not pleaded by the defendants.
24.The sale deed executed by the defendant Nos.5 & 7 are registered documents and till date not questioned by the executants. If consideration is not passed it can be agitated only by the defendant Nos.5 14/25 https://www.mhc.tn.gov.in/judis S.A.No.410 of 2002 & 7 not by the 1st defendant. The defendant Nos.5 & 7 also were set exparte even in the trial Court.
25.Whether the the 7th defendant has right to sold the property depends upon the adoption. Adoption not proved.
26.The Judgment of the Honourable Apex Court reported in A.Raghavamma and another Vs. A.Chenchamma and another - AIR 1964 SC 136, wherein it has been held in para 14 that, “It is well settled that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity.
It has to be seen as to whether the defendants 1 and 2 have roperly pleaded and proved the factum of adoption propounded by them and whether the courts below have properly applied the above principles of law.
While looking at the pleadings of the defendants 1 and 2, specific details are lacking about the date, month and year when the seventh defendant was taken in adoption by the widow of Chellappa Chettiar, the age of seventh defendant at the time of adoption, the age of 15/25 https://www.mhc.tn.gov.in/judis S.A.No.410 of 2002 widow of Chellappa Chettiar at the time of adoption, the performance of ceremonies of adoption and the actual “giving of adoption” and “taking in adoption”.
27.The Judgment reported in AIR 1980 SC 2008, in the case of Smt. Shanti Bai Vs. Miggo Devi - AIR 1980 SC 2008, the Hon'ble Supreme Court held as follows:
“after holding that the factum of adoption is proved, refused to uphold adoption on the ground that validity of adoption is not proved. The Hon'ble Supreme Court dealt with a case where the adoption was prior to the Hindu Adoption and Maintenance Act. Where the adoption pleaded was by a widow after the death of her husband, the Hon'ble Supreme Court held that the adoption is not proved to be valid as it is not proved that prior to the death of husband, he gave authority to his wife to adopt a son after his death” So, the adoption is not proved. Title and relationship was admitted. So, the burden of proof shifts on the defendant. But, the defendant has not produced any evidence to prove the adoption.16/25
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28.The 3rd respondent was set exparte. So, any right given to the 3 rd respondent is developed on the legal heirs of the 3rd respondent. The particulars of the legal heirs not known the respondents themselves.
29.The relevant portion of the Judgment in SLP(CIVIL) Nos. 904-905 of 2021 is extracted hereunder:
“we are of the view that it would serve no purpose to keep these two respondents impleaded when they have not appeared before any of the Courts below nor preferred the appeals from the trial Court order. This would however not prejudice the respondents before us in any manner from claiming under them. This would take care of the issue raised before us.” So, the legal heirs of the 3rd respondent are not necessary because any right given to R-3 declared on his legal heir. He remained exparte for the beginning till his death.
30.Regarding partial partition. The appellants/plaintiffs are third parties and they cannot wait for other properties to be partitioned. So, the suit cannot hit by partial partition.
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31.As per the case of the defendants, item Nos.1 to 6 were purchased by Raman Chettiar and item Nos.7 to 11 are ancestral properties. Further the defendant Nos.1 & 2 have pleaded that Ramasamy Chettiar and Adaikammai have filed a petition in O.P.No.5 of 1984 for issuance of succession certificate for the death of Swaminathan Chettiar and succession certificate was also issued. To revoke succession certificate Sambandam/7th defendant have filed a petition in I.A.No.80 of 1984 which was dismissed by the Sub Court, Pudukkottai. The 7 th defendant has not taken any steps against that order. So, it became final. In that order, Ex.B.2, the Court observed as follows:
“The question whether the petitioner is the natural son of Saminathan Chettiar and there is no severance from the natural family is left open to the decided in a suit.”
32.But, in this case, the documents mentioned in the original petition order has not been filed. Only the Civil Court has to decide that the adoption of the 7th defendant is valid or not. 18/25 https://www.mhc.tn.gov.in/judis S.A.No.410 of 2002
33.Further, the cross examination of D.W.1 is as follows:
“7k; gpujpthjpapd; jpUkzj;jpw;F mth;
jj;J Nghdjhf nrhy;tJ vj;jid
tUlq;fSf;F Kd;G vd;W rhpahf nrhy;y
KbahJ. mJNghy; jj;J NghdJ 1955
my;yJ 56 Mf ,Uf;fyhk;.”
34.At the time of filing suit natural mother D-6 was alive. But, she was set exparte and not deposed about the adoption.
35.The vendors of the plaintiffs and the defendant Nos.5 & 7 have also remained exparte till the disposal of the second appeal. The plaintiffs have filed the suit for partition. Regarding the properties, they have purchased from the defendant Nos.5 & 7. They have not denied the execution of sale deeds. When the defendant Nos.1 & 2 have admitted that the title of predecessor relationship and shares in the properties. The plaintiffs are entitled for partition.
36.The learned counsel appearing for the defendant Nos.10 & 11 has relied upon the Judgment reported in 2016(2)SCC 82 in the case of 19/25 https://www.mhc.tn.gov.in/judis S.A.No.410 of 2002 State of Andhra Pradesh through Principal Secretary and Other Vs. Pratap Karan and Others, in which the Hon'ble Apex Court held as follows:
“40. In the instant case, the plaintiffs joined together and filed the suit for rectification of the revenue record by incorporating their names as the owners and possessors in respect of the suit land on the ground inter alia that after the death of their predecessor-in-title, who was admittedly the pattadar and khatadar, the Plaintiffs succeeded the estate as shares being the sons of khatadar. Indisputably, therefore, all the plaintiffs had equal shares in the suit property left by their predecessors. Hence, in the event of death of any of the plaintiffs, the estate is fully and substantially represented by the other sharers as owners of the suit property. We are, therefore, of the view that by reason of non-substitution of the legal representative(s) of the deceased plaintiffs, who died during the pendency of the appeal in the High Court, entire appeal shall not stand abated. Remaining sharers, having definite shares in the estate of the deceased, shall be entitled to proceed with the appeal without the appeal having been abated. We, therefore, do not find any reason to agree with the submission 20/25 https://www.mhc.tn.gov.in/judis S.A.No.410 of 2002 made by the learned counsel appearing for the appellants.”
37.Even as per this Judgment the entire appeal cannot be dismissed as abated.
38.The learned counsel appearing for the defendant Nos.10 & 11 has relied upon another Judgment reported in 2019 (11) SCC 787 in the case of Sunkara Lakshminarasamma (Dead) by legal representatives Vs. Sagi Subba Raju and Others, in which the Hon'ble Supreme Court held as follows:
“Held: Order 22 Rule 4 of CPC lays down that where within the time limited by law, no application is made to implead LRs a deceased defendant, the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead LR of a defendant, the suit will abate as a whole. If the interests of the co-defendants are separate, as in the case of co-owners, the suit will abate only as regards the particular interest of the deceased party. In such a situation, the question of the abatement of the appeal in its entirety that has arisen in this case depends upon general principles.21/25
https://www.mhc.tn.gov.in/judis S.A.No.410 of 2002 If the case is of such a nature that the absene of LRs of the deceased respondent prevents the court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died. The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject-matter. The Court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the court has no alternative but to dismiss the appeal as a whole. If on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the court should not hear the appeal and adjudicate upon the dispute between the parties.
39.In the case on hand already the 3rd defendant is a party and remained exparte. His right and others who are sons of Ramasamy in the suit properties decided by trial Court and also in Appellate Court. Till his death he has not conducted the case. The 3 rd defendant has not appeared and not denied the allegations in the plaint. Further, the plaintiffs are 22/25 https://www.mhc.tn.gov.in/judis S.A.No.410 of 2002 3rd party to the family and claims right through his purchase from the defendant Nos.5 & 7. So, the right of the plaintiff can be decided on his own document in the absence of the legal heirs of the 3rd defendant.
40.The value and recitals in the sale deed executed by the defendant Nos.5 & 7 can be objected only by the vendors and not by other person except when their right is interfered. In this case, the defendant Nos.5 & 7 had executed the sale deed and also handed over the possession of the properties on the date of execution. The documents are registered documents.
41.From the above discussions, this Court comes to the conclusion that the plaintiffs are entitled for partition.
42.Accordingly, this Second Appeal is allowed and the preliminary decree is passed as prayed for. No Costs.
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1.The Principal District Judge, Pudukkottai.
2.The Subordinate Judge, Pudukkottai.
3.The Section Officer, Madurai Bench of Madras High Court, Madurai.24/25
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ksa Judgment made in S.A.No.410 of 2002 28.07.2022 25/25 https://www.mhc.tn.gov.in/judis