Madras High Court
N.K.Santharaman vs Smt.N.S.Ramila
Author: N.Sathish Kumar
Bench: N. Sathish Kumar
RESERVED ON : 15..03..2017
DELIVERED ON : 04..4..2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CORAM
THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR
A.S.No.827 of 2012
and MP.No.1 of 2012
N.K.Santharaman ... Appellant
Vs.
1.Smt.N.S.Ramila
2.N.S.Pradeepkumar
3.N.S.Sridhar
4.Smt. N.S.Uma
5.Chennai Metropolitan Development Authority
Rep.by its Member Secretary
Having office at Thalamuthu Natarajan Building
Egmore, Chennai 600 008
6.The Commissioner
Corporation of Chennai
Ripon Buildings,
Chennai -600 003 ... Respondents/defendants
Prayer:- This Appeal suit has been filed under Section 96 of C.P.C. against the judgment and decree of the III Additional District judge, Third Fast Track Court No.III, City Civil Court, Chennai, dated 06.03.2012 and made in O.S.No.2483 of 2011.
For Appellant : Mr.R.Thiyagarajan,
Senior Counsel for K.Kumudha
For R1,R3,R4,R7 to R9 : Mr. R.Sankaranarayanan
Senior Counsel for
Ms. K.Sumathi
For R5 : Mr.C.Johnson
For R6 :No Appearance
J U D G M E N T
The Unsuccessful plaintiff in O.S.No. 2483 of 2011, on the file of the learned III Additional District Judge, Fast Track Court III, Chennai, is the appellant herein.
2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court.
3. The plaintiff filed a suit in O.S.No.2483 of 2011, before the learned III Additional District Judge, Third Fast Track Court, Chennai, for declaration declaring that the plaintiff is entitled to schedule "B" property morefully described in the plaint and also for permanent injunction restraining the defendants 1 to 4 from carrying out any construction in the suit property.
4. After contest, the suit was dismissed.
5. The brief facts of the case of the plaintiff are as follows:
(i) Originally, the suit property was purchased by late N.Kuppusamy Iyer, father of the plaintiff. By virtue of family arrangement dated 25.09.1974, the properties had been divided among the family members of late Kuppusamy Iyer. Accordingly, the property bearing Door No.85, South Usman Road, T.Nagar, Chennai 600 017 was allotted to the mother of the plaintiff. She bequeathed the said property to one N.K.Thulasiraman, the defendants 1 to 4 and the plaintiff's sisters, viz., K.S.Meena, T.R.Sabitha, A.C.A. Yamuna and L.N.V. Simha Chandran, husband of late Durga and Daughter of late Kuppusamy Iyer.
(ii) When the matter stood thus, the plaintiff and his two sons had filed a suit in O.S.No.285/1989 on the file of the Sub Court, Madurai, for partitioning the plaintiff's share of 4/21 share in the suit properties and also obtained preliminary decree. As against the said preliminary decree, the plaintiff herein had filed a suit in A.S.No.559 of 1994. Similarly, the defendants 1 to 4 had also jointly filed A.S.No.385 of 1994. Likewise, K.S.Meera and others jointly filed A.S.No.1216 of 1994 and the above said Thulasiraman filed A.S.No.539 of 1994. When the aforesaid appeals were taken up together for disposal, the parties themselves came forward to settle the dispute. As a result, a compromise memo was filed and on the basis of the same, the appeals were disposed of on 03.10.2001.
(iii) According to the plaintiff, the property, bearing Old No.23, Murugesan Road, T.Nagar, Chennai 600 017, measuring an extent of 9600 sq.ft., has been divided into three shares between the plaintiff and his two brothers, viz., N.K.Seetharam and N.K.Thulasiraman. At the time of family arrangement, it was agreed to divide the property equally. Since the building was constructed in the middle portion belongs to the defendants 1 to 4 herein, the eastern portion was allotted to N.K.Thulasiram and Western portion was allotted to the plaintiff herein. At the time of disposal of the aforesaid first appeals, parties have agreed to divide the properties equally between the plaintiff and the defendants 1 to 4 and N.K.Thulasiraman. Even after the disposal of the aforesaid appeals, parties had several rounds of discussions for diving the property equally. The defendants 1 to 4 had agreed for such proposal and promised the plaintiff that as the sale negotiation in respect of the property bearing Door No.85, South Usman Road, T.Nagar, Chennai 17 was going on , after the disposal of the said property, the property in respect of Old No.23, Murugesan Road, T.Nagar, Chennai 600 017 has to be divided equally. On such understanding the plaintiff had signed the Sale Deed in respect of the afoesaid Usman Road property. Even thereafter, the plaintiff had discussion with the defendants 1 to 4 with the help of sisters, but the defendants 1 to 4 refused to divide the property equally. It is stated that though the defendants all along promised to give 640 sq.ft, at the time of demolition of the existing superstructure, they refused to give the same. Similarly, the property situate at Old Door No.23, Murugesan Road, T.Nagar, Chennai 600 017 has to be divided equally between three brothers, viz., the plaintiff, N.K.Thulasira and the defendants 1 to 4 herein.
(iv) According to the plaintiff, the entire property measuring 9600 sq.ft have to be divided equally between three brothers, but unfortunately, the same has not been done so. Instead of giving 40 feet on the northern side, the plaintiff was given only 32 feet. On the other hand, the defendants 1 to 4 are having 48 ft., on the northern side though legally they are entitled only 40 ft. Similarly, the defendants 1 to 4 are having 51 feet on the rear side whereas the plaintiff is having only 34 feet on the rear side i.e. on the southern side. Therefore, the plaintiff is entitled 8 feet on the North and 6 ft on the south 80 ft on East and West. Similarly, the defendants 1 to 4 are entitled to have similar dimension in all the four sides as mentioned above. Since the superstructure was on the middle portion of the entire suit property measuring 9600 sq.ft. (120 x80), it was not equally divided at the time of entering the family arrangement. However, all the parties have agreed to divide the property equally. The claim of the plaintiff is quite reasonable, justifiable and legally sustainable. On equity, the defendants 1 to 4 are bound to give schedule "B" to the plaintiff. Since the defendants 1 to 4 are taking steps to demolish the existing superstructure, the plaintiff has filed the present suit for declaration and permanent injunction.
6. The brief averments of the written statement filed by the defendants are as follows:
While admitting the relationship between the parties, it is the contention of the defendants that the property shown in the sketch annexed to the plaint with the alphabet "A" inscribed in the sketch, allotted to the plaintiff under the family arrangement and he sold the same via sale deed dated 23.12.1998 and 04.10.2001. The plaintiff, thus, having sold the entire property that was allotted to him under the family arrangement, which was also confirmed by Memorandum of Compromise in a litigation, has lost all his interest, claim etc. upon the property and the instant suit is not maintainable. The prayer of declaration without seeking relief of possession is also barred bylaw. The plaintiff is not in possession of any of the two properties. The defendants have denied the allegations that they have agreed to provide 640 sq.ft to the plaintiff. The allegation that the parties had several rounds of discussion for dividing the property even after the disposal of the appeals is also denied by the defendants. The compromise decree was passed on 03.10.2001 and on 04.10.2000, the remaining portion of the property was sold. Hence, it is the contention of the defendants that they never agreed to provide 640 sq.ft to the plaintiff as alleged by him. Thus, the defendants prayed for dismissal of the suit.
7. Based on the above pleadings, the trial Court has framed the following issues:-
1.Whether the family arrangement dated 15.09.1974 is true?
2.Whether the sale on 23.12.1998 is binding on the plaintiff?
3.Whether the compromise decree was passed on 03.01.2001 and the same is binding on the plaintiff?
4.Whether the plaintiff is entitled for declaration in respect of 8 x80 sq.ft ?
5.To what relief the plaintiff is entitled to?
8. On the side of the plaintiffs, the plaintiff himself was examined as PW1 and one Thulasiraman was examined as P.W.2 and Exs. A1 to A4 were marked. On the side of the defendants, the 1st defendant himself was examined as DW1 and no documents were filed.
9. Based on the oral and documentary evidence adduced on either side, the trial Court dismissed the suit. Aggrieved over the same, the present appeal came to be filed.
10. The learned Senior counsel appearing for the appellant/plaintiff submitted that the suit property and other property, viz., Old Door No.9, New Door No.23, Murugesan Road, T.Nagar, Chennai 600 017 and No.85, South Usman Road, T.Nagar, Chennai 600 017 respectively, originally belonged to one Kuppusamy Iyer, father of the plaintiff herein. By virtue of family arrangement dated 25.09.1974, Door No.85, South Usman Road, T.Nagar, Chennai -600 017 was allotted to mother of the plaintiff, by name, N.K.Subbulakshmi Ammal. In fact, the said Subbulakshmi Ammal, mother of the plaintiff, had bequeathed the aforementioned property to other legal heirs except the plaintiff.
11. The learned Senior counsel for the appellant/plaintiff further submitted that though the aforementioned property has been divided into three shares, i.e., the plaintiff and his two brothers, N.K.Seetharaman and N.K.Thulasiraman, at the time of family arrangement, it was agreed to divide the property equally since the building was constructed in middle portion belonged to defendants 1 to 4 and the eastern portion belonged to N.K.Thulasiraman and western portion belonged to the plaintiff herein. Only for convenience sake, the above arrangement was made. But the intention of the parties was to divide the properties equally. It is submitted that the so called family arrangement held to be null and void, in view of the preliminary decree passed by the Subordinate Judge, Madurai, in O.S.No.285 of 1989. It is also submitted that as against the judgment and decree passed by the Subordinate Judge, Madurai, four appeals were filed by all the parties, including the plaintiff, wherein compromise memo was filed and in pursuance of the said compromise, the appeals were disposed of.
12. It is the contention of the learned Senior counsel for the appellant/plaintiff that the intention of the parties was to divide the properties equally and only on such understanding, the compromise was entered into between the parties. If the suit property is divided equally, the plaintiff will get 640 sq.ft i.e., (8 x 80). It is submitted by the learned Senior counsel for the appellant/plaintiff that the defendants had also agreed and promised to give 8 ft., on the eastern side and western side of the property, which comes to around 640 sq.ft. (8x80). The evidence of P.W.1 and P.W.2 as well as cross examination of D.W.1 would clearly show that, in fact, there was a discussion with regard to the allotment of the property to the plaintiff. It is also the contention of the learned Senior counsel for the appellant/plaintiff that even in the compromise decree, it was specifically stated that the suit property shall be divided into three parts. Merely on the basis of the conditions set out in the compromise memo, it cannot be said there is no equal partition. The conditions set out in the agreement as well as the evidence of P.W.1 and P.W.2 and D.W.1 would clearly show that there was discussion among the parties to allot 640 sq.ft to the plaintiff. Such compromise was made only on account of unequal allotment to the plaintiff. Hence, the learned Senior counsel for the appellant/ plaintiff submitted that the plaintiff, being one of the co-owner in the property, certainly, entitled for declaration as prayed for.
13. Whereas it is the contention of the learned Senior counsel for the respondents 1,3,4,7 to 9/defendants 1,3,4,7 to 9 that originally, the partition was effected by way of family arrangement. Subsequently, in the suit filed by the plaintiff and his two sons, it is held that compromise was not acted upon and it is not binding. As against the same, four appeals were filed by the aggrieved parties including the plaintiff herein. All the four appeals were disposed of based on the compromise entered into between the parties. In the said appeals, parties, infact, have agreed to share the properties, as per the original allotment except small variation between Thulasiraman and defendants. Therefore, it is submitted by the learned Senior counsel that the appellant/plaintiff cannot take advantage of the compromise decree and claim excess share. According to the learned Senior counsel, having agreed the allotment, as per the final family arrangement, the plaintiff cannot claim any additional extent under the guise of equity.
14. It is the further contention of the learned Senior counsel for the respondents 1,3,4,7 to 9/ defendants 1,3,4,7 to 9 that the suit, as such, is premature one and is not maintainable. The plaint pleading itself clearly shows that even after the disposal of the appeals, there were discussions between the parties to allot the plaintiff's share. That being case, the suit should be in the nature of specific performance to enforce the alleged agreement or promise made by others. The right of the plaintiff itself has not been crystalised in the suit property. Therefore, declaration as sought for cannot be granted, as the property allotted to the plaintiff under the family arrangement has already been sold by him and he is not in possession of any of the properties. Hence, the suit for declaration seeking possession is also not maintainable in law.
15. It is submitted by the learned Senior counsel for the respondents/defendants that the plaintiff has filed a suit on the basis of equity also. The person, who comes to Court claiming equity must come with clean hands. The plaintiff has already sold the property allotted to him. His conduct would also clearly show that the suit is nothing but mere speculative in nature. Hence, the learned counsel for the respondents / defendants prayed for dismissal of the suit.
16. In the light of the above submission, the following points arise for consideration in this appeal.
1.Whether the plaintiff has any right or legal character in the suit property to claim a declaratory relief?
2.Whether the plaintiff is entitled to challenge the compromise decree passed by this Court in A.S.Nos.559 of 1994, 384 of 1994, 1216 of 1994 and 539 of 1994? Point Nos.1 and 2:
17. The suit itself is filed for declaration declaring the right of the plaintiff in an extent of 640 sq.ft in a property bearing Old No.9, New No.23, Murugesan Road, T.Nagar, Chennai 600 017, which is more fully described in "B" schedule property. The plaintiff is the son of Kuppusamy Iyer and the defendants 1 to 4 are the wife and children of N.K.Seetharaman, who is another son of Kuppusamy Iyer. It is not disputed by both sides that the suit property and another property, viz.,Old Door No.9, New Door No.23, Murugesan Road, T.Nagar, Chennai 600 017 and No.85, South Usman Road, T.Nagar, Chennai 600 017 respectively, are self acquired property of late Kuppusamy Iyer. It is also not disputed that on 25.9.1974, family arrangement was entered into between the family members of late Kuppusamy Iyer, in which, Door No.85, South Usman Road, was allotted to the mother of the plaintiff N.K.Subbulakshmi Ammal.
18. From the plaint pleadings, it appears that the said Subbulakshmi Ammal had bequeathed the aforesaid properties to other legal heirs, except the plaintiff. Of course, the same is not germane for consideration in this appeal. It is the contention of the plaintiff that at the time of family arrangement, it was agreed to divide the properties equally. However, the property was not equally divided. It has been pleaded in the plaint that it was divided otherwise. It is the main grievance of the plaintiff that instead of giving 40 feet on the northern side, the plaintiff was given only 32 feet. On the other hand, the defendants 1 to 4 are having 48 feet on the northern side but legally they are entitled to 40 feet only. Similarly, the defendants 1 to 4 are having 51 feet on the rear side, whereas the plaintiff is having only 34 feet on the rear side i.e. on the southern side. Hence, it is the contention of the plaintiff that in the entire area, i.e. out of 9600 sq.ft, if the property was divided properly, he is entitled to another 640 sq.ft. The plan attached to the plaint would clearly show that the property mentioned in "A" portion was allotted to the plaintiff, "B" portion was allotted to defendants 1 to 4 and "C" portion was allotted to Thulasiraman, another brother of the plaintiff.
19. In this regard, when Ex.A1, filed before the lower Court, is carefully seen, it is the deed of family arrangement, which was registered on 25.9.1974, entered into between the wife and children of late Kuppusamy Iyer, wherein the plaintiff was allotted not only western portion of land bearing No.23, Murugesan Road, T.Nagar, Chennai -600 017 but also some property situate in Madurai. In fact, the plaintiff was allotted the property morefully shown in the plan attached to the plaint. At the time of family arrangement, eastern boundary, land and superstructure was allotted to N.K.Seetharaman, the husband of the 1st defendant. The allotment at the earliest point of time i.e., in the year 1974, would clearly show that only vacant side, which was shown in the plan attached to the plaint, was allotted with specific boundaries.
20. Of course, it is admitted fact that the suit has been filed by the plaintiff's sons for preliminary decree on the file of the Sub Court, Madurai. In the said suit, the learned subordinate judge, has held that the family arrangement is not binding on the plaintiff's sons. As against the same, the plaintiff filed an appeal in A.S.No. 559 of 1994 on the file of this Court. Similarly, the defendants 1 to 4 also filed an appeal in A.S.No. 384 of 1994 and other legal heirs have filed A.S.No.1216 of 1994 and 539 of 1994. All the appeals were disposed of, by this Court, vide judgment dated 03.10.2001, on the basis of the compromise memo entered into between the parties. The above judgment has been marked as Ex.A2.
21. On reading of the above judgment, it is seen that all the four appeals were disposed of on the basis of the compromise entered into between the parties. Though the aforesaid compromise relates to various properties, Clause 8 of the said compromise deals with the suit properties. Clause 8 of the compromise entered into between the plaintiff and his brothers reads as follows:
"The parties agree that item 3 of the schedule properties which is old Door No.23, New Door No.9, Murugesan Street, T.Nagar, Chennai 17 (Now subdivided and given as present Door Nos.21,23 & 25) be divided into three parts, Western Portion will vest with the respondents No.3 (N.K.Santharam), Middle portion to respondents 5 to 8 (N.S.Ramila, N.S. Pradip kumar, N.S.Sridhar and N.S.Uma) and eastern portion to the 4th respondent (N.K.Thulasiram). The respondents 5 to 8 agree that an extent of 235 sq.ft. measuring 5 ft, East to West and 47 ft., North to South being covered by the existing building will be handed over to the fourth respondent at the time of demolition and reconstruction. The fourth respondent N.K.Thulasiram shall pay a total sum of Rs.75,000/- to the respondents 5 to 8 in respect of the nominal value of 235 sq.ft."
22. It is to be noted that as far as the plaintiff is concerned, he was allotted only western portion, i.e., existing vacant land. Only an agreement was made between the defendants 1 to 4 and Thulasiraman to part with 235 sq.ft at the nominal value of Rs.75,000/-. As far as the suit property is concerned, it was, infact, finally agreed between the parties in a compromise memo to divide the same into three parts. If really the intention of the parties was to divide the suit property equally, the same should have been mentioned in the compromise memo itself. Whereas in the compromise memo, three Door Nos have been mentioned and that itself shows that the parties had agreed to divide the properties into three parts and not equally. In fact, this agreement reached between the parties under compromise memo is in the line of original allotment made in the year 1974. Only in the year 1994, there was some dispute with regard to the extent, that too, between Thulasiram and the defendants 1 to 4 herein and the same was also sorted out in clause 8 of the aforesaid compromise memo.
23. From the reading of clause 8 of the compromise memo, this Court is unable to accept the the argument put forth by the learned counsel for the plaintiff that the parties had agreed to divide the properties into three equal shares. In fact, the allotment, which was made in the year 1974, has been confirmed in the aforesaid compromise, except similar variation with regard to 235 sq.f.t, which is to be allotted to Thulasiram, another brother of the plaintiff, on payment of Rs.75,000/-. If really the plaintiff has not agreed for such allotment, he should have also made similar demand for allotting some more extent to him, as has been done to the said Thulasiraman, the brother of the plaintiff. But the plaintiff has not raised any objection with regard to the above allotment.
24. It is further to be noted that the conduct of the appellant/plaintiff in filing the appeal, as against the judgment and decree of the Subordinate Judge, Madurai, wherein it is held that the family arrangement is not binding on the parties, itself would clearly indicate that, infact, he was agreeable for such allotment made as per the family arrangement. Further, if really it was the intention of the parties to divide the property equally as contended by the plaintiff, the same should have been mentioned in the compromise memo itself. In Clause 11 of the compromise memo, it is specifically stated that each will have 1/3 share. In clause 8 it was agreed to divide the property into three parts, taking into consideration the three separate door Nos.
25. It is also to be noted that the parties have also agreed that they have no further claim against one another in respect of the plaint schedule properties. Having made such agreement, now, it cannot be contended by the plaintiff that, it was agreed to divide equally in the compromise memo. As already stated above, in the compromise memo it was not at all agreed between the parties to divide the suit properties equally whereas it was agreed to divide into three parts. At the risk of repetition, this Court once again points out that if really, the intention of the parties was to divide the property equally, then there was no need whatsoever, for allotting another 235 sq.ft to one Thulasiraman alone on payment of Rs.75,000/-. This fact would clearly show that infact, the allotment was made to the plaintiff in tune with the family arrangement which was entered in the year 1974.
26. Though it is the contention of the learned Senior counsel for the plaintiff that there was a discussion to divide the suit property and the defendants had also agreed to provide 600 sq.ft. to the plaintiff, when the evidence of P.W.1 is carefully perused it is seen that in the cross examination, he has admitted that the allotment was made as per the original allotment, i.e., as per the plan appended in the plaint. Similarly, P.W.1 has also admitted that only as per the oral agreement, the defendants agreed to provide 640 sq.ft and only in the year 2004, they promised to give him land but, the defendants have not acted upon the same. He has also stated that even as per the compromise memo, only in the year 2004, they promised to give 640 sq.ft.
27. Admittedly, the plaintiff himself admitted that he has sold the entire property allotted to him in the year 1998 and 2001 itself. It is also admitted that the property shown as "A" in the plan attached to the plaint alone was allotted to him and he has also claimed right on the basis of equity. The learned counsel for the plaintiff has placed much reliance on the evidence of P.W.2 and D.W.1. Though P.W.2 admitted that there was discussion to divide the property, the same has been falsified in view of his evidence in the cross examination. Further he has admitted that there was discussion to give 8 x 80 feet land to the plaintiff at the time of compromise memo. However, the plaintiff did not ask for that as a right. That apart, in the cross examination, he has admitted that there was no discussion to provide 640 sq.ft.
28. Though D.W.1 in her cross examination admitted that there was a discussion to divide the property, when the entire evidence is perused, it is seen that she has denied the same in the cross examination. Therefore, merely because some truncated statement was made by D.W.1, it cannot be stated that there was a discussion to divide the suit properties. The pleadings in the plaint themselves clearly indicate that they had discussion even after the suit reached its finality, on the basis of the compromise decree. Even assuming that after compromise decree passed by this Court, the defendants have made promise for such allotment and failed to perform the same, the plaintiff ought to have filed a suit for specific performance and not for declaration. Since the plaintiff's right in the suit property has already been determined in the compromise decree passed by this Court, he is estopped from claiming his right on the basis of the compromise decree and also on the basis of oral promise said to have made by the defendants.
29. As discussed above, even assuming that there was a discussion, the plaintiff's remedy will lie only for enforcement of such alleged promise. Having filed a compromise memo and accepted the compromise decree, which also reached finality, the plaintiff cannot now canvass his case contrary to the judgment passed by this Court, merely on the basis of the oral agreement said to have taken place between the parties, that too, after disposal of the appeals. Similarly, properties have been divided as per the compromise decree and the plaintiff has already sold the property which was allotted to him and now he is no longer in possession of the property. That apart, when his right in the suit property itself has not been crystalised, the suit for declaration is not maintainable .The learned Trial Judge considering all these aspects has rightly dismissed the suit and this Court does not find any infirmity or illegality in the judgment passed by the learned trial Judge. These points are answered accordingly.
In the result, the appeal is dismissed confirming the judgment and decree of the trial Court. However, considering the relationship between the parties, there shall be no order as to costs. Consequently, connected Miscellaneous petition is closed.
ga 04..04..2017
Index: Yes/No
speaking order/Non speaking order
To
The III Additional District Judge
Fast Track Court No.III,
Chennai.
N.SATHISH KUMAR, J.
ga
A.S.No.827 of 2012
04..04..2017
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