Madras High Court
Muthulakshmi vs K.Gopal on 16 April, 2024
SA.No.12 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.04.2024
CORAM
THE HON'BLE Mr.JUSTICE C.KUMARAPPAN
S.A.No.12 of 2010
and
MP.Nos.1 & 2 of 2010
and
Cros.Obj.No.113 of 2011
S.A.No.12 of 2010
Muthulakshmi
... Appellant
- Vs -
1. K.Gopal
2. K.Subramanian
3. P.Alamelu
4. A.Ayyammal
5. J.Lakshmi
6. C.Subramaniam
7. K.Ganesan
8. G.Balamani
... Respondents
Second Appeal is filed under Section 100 of the Civil Procedure Code
against the judgment and decree dated 30.07.2009 passed in A.S.No.50 of
2008 on the file of Principal District Judge, Salem, confirming the judgment
and decree dated 17.04.2008 passed in O.S.No.242 of 2004 on the file of the
Additional Subordinate Judge, Salem.
For Appellant : Mr.V.Venkatasamy
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https://www.mhc.tn.gov.in/judis
SA.No.12 of 2010
For Respondents : Mr.T.Murugamanickam
Senior Counsel for Mr.V.Rajesh for R1
Mr.R.Subramanian
for Mr.A.Ganesan for R7 & R8
Mr.S.Kaithaimalai Kumaran for RR2,4 & 5
Mr.M.Balasubramanian for R3
R6-Died
Cros.Objn.No.113 of 2011
1. K.Ganesan
2. Smt.G.Balamani
-Vs-
1. T.Muthulakshmi
2. K.Gopal
3. K.Subramanian
4. Smt.P.Alamelu
5. Smt.A.Ayyammal
6. Smt.J.Lakshmi
7. C.Subramaniam
Cross Objection is filed under Order 41 Rule 22 praying to set aside
the findings rendered in the common judgment dated 30.07.2009 passed in
A.S.No.44 & 50 of 2008 on the file of Principal District Judge, Salem, in so
far as it is against the Cross Objectors concerned.
For Cross Objectors : Mr.R.Subraminan
for Mr.P.Gopalan
For Respondents : Mr.T.Murugamanickam
Senior Counsel for Mr.V.Rajesh for R2
Mr.V.Venkatasamy for R1
Mr.S.Kaithaimalai Kumaran for RR3, 5 & 6
Mr.M.Balasubramanian for R4
R7-Died
*****
JUDGMENT
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https://www.mhc.tn.gov.in/judis SA.No.12 of 2010 One Muthulakshmi, who is figured as 5th defendant in the suit is the appellant herein. The plaintiff before the Trial Court is the first respondent, and the defendants 1 to 4, 6 to 8 are the respondents 2 to 8 herein.
2. For the sake of convenience, the parties will be referred to according to their litigative status before the Trial Court.
3. The brief facts which give rise to the instant Second Appeal is that, the plaintiff, the defendants 1 to 4 and one Arunachalam and Perumal are the children of one Perumaiammal, wife of Krishna Gounder. It is the further submission of the plaintiff that the suit property and other properties are joint family properties among the plaintiff, 1st defendant, deceased Perumaiammal, Arunachalam and Perumal. On 03.05.1979, the members of the joint family have partitioned the property by virtue of registered partition deed dated 03.05.1979. In the said partition, the deceased Arunachalam was allotted “A” schedule property. While so, Arunachalam died on 07.04.1993. Therefore, by virtue of the Hindu Succession Act, the property devolved upon one Perumaiammal namely, the mother of the plaintiff and the defendants 1 to 4. It is the further contention of the plaintiff that the 5th defendant though 3/14 https://www.mhc.tn.gov.in/judis SA.No.12 of 2010 proclaims that she is the daughter of Arunachalam, the same was disputed by the plaintiff. Therefore, it was contended that she has got no manner of right in the suit property. Since Perumaiammal died intestate in respect of Arunachalam's property, the plaintiff and the defendants 1 to 4 alone are entitled to have share of 1/5th share each. Hence, the plaintiff has come forward with a suit for partition.
4. The said suit was resisted by the 5th defendant by contending that she is the daughter of the deceased Arunachalam and that after the demise of late.Arunachalam, the suit property becomes the absolute property of the 5th defendant. As the owner of the property, the 5th defendant has also executed a sale deed in favour of the defendants 6 to 8, and that the suit property has been in possession and enjoyment of the defendants 5 to 8. Hence, this defendant submits that the plaintiff and the defendants 1 to 4 have no right title over the suit property. Hence, prayed to dismiss the suit. 4/14 https://www.mhc.tn.gov.in/judis SA.No.12 of 2010
5. Though the first defendant has filed a separate written statement, he has supported the case of the plaintiff.
6. Before the Trial Court, the plaintiff himself was examined as PW1 and on behalf of the defendants, 3 witnesses were examined as DW1 to DW3. On behalf of the plaintiff, 12 documents have been marked as Exs.A1 and A12 and 16 documents have been marked on behalf of the defendants as Exs.B1 to B16.
7. The Trial Court, after having considered the oral and documentary evidence, has held that the 5th defendant is the daughter of Arunachalam and thereby, alloted 7/12th share. Similarly, the plaintiff and the defendants 1 to 4 were allotted 1/12th share each. Not satisfying with the order of the Trial Court, the defendants 7 and 8 on the one hand, and the 5th defendant on the other hand have filed two separate appeals in A.S.Nos.44 and 50 of 2008. The defendants 7 and 8 have contended that, since they have purchased the suit property from the 5th defendant, they sought for a partition and allotment of separate possession of the property with specific boundary, as they have purchased from the 5th defendant. Similarly, the 5th defendant had challenged 5/14 https://www.mhc.tn.gov.in/judis SA.No.12 of 2010 the decree on the footing that she is the absolute owner of the property. Hence, contended that the suit is not maintainable.
8. However, the First Appellate Court has concurred with the finding of the Trial Court and dismissed both the appeals.
9. Not satisfying with the judgment of the First Appellate Court, the 5th defendant preferred the instant Second Appeal.
10. At the time of admission on 08.01.2010, this Court has formulated the following substantial question of law:-
“1) Whether the suit for partial partition is maintainable in law in view of non inclusion of the property allotted to the plaintiff's mother under Ex.A1, registered partition deed which has to be divided equally among her legal heirs?
2) Are the Courts below correct in law in decreeing the suit for partition especially when the testator claimed the right over the suit property during her life time and failed to pursuit such right which amounts to waiver of her right in favour of appellant?”
11. The learned counsel for the appellant/5th defendant would 6/14 https://www.mhc.tn.gov.in/judis SA.No.12 of 2010 vehemently contend that, when the plaintiff has come forward with a specific plea that the property of Arunachalam devolved upon Perumaiammal, it is mandatory on the part of the plaintiff to include all the properties of Perumaiammal. Whereas in the instant suit, they have not included all her properties, therefore, contended that the suit is hit by the doctrine of partial partition. It is also the contention of the learned counsel for the appellant that on dismissal of O.S.No.498 of 1993, the entire suit property must be construed as the absolute property of the 5th defendant. Therefore, would submit that even otherwise the suit for partition is liable to be dismissed.
12. However, the learned Senior Counsel appearing on behalf of the plaintiff would submit that, there is no pleadings in respect of the partial partition, and that there were no issues framed for partial partition. Therefore, contended that at the Second Appeal stage, the 5th defendant cannot put forth the defence of partial partition. It was also contended by the learned Senior Counsel that, in a suit for partition, even the defendants are like a plaintiff. Therefore, if at all if any of the suit property was omitted, there is a duty cast upon the defendants to include the omitted property. However, they have not mentioned in their written statement. Therefore, the 7/14 https://www.mhc.tn.gov.in/judis SA.No.12 of 2010 5th defendant cannot take such defence at the Second Appeal stage. It was also contended by the learned Senior Counsel that there are no perversity in the judgment of the First Appellate Court. It was also contended by the learned Senior Counsel that, the cross objection filed by the defendants 7 and 8 is not maintainable as they have already lost the First Appeal and that they cannot bypass the filing of Second Appeal by filing the cross objection in the appeal filed by the co-defendant. Hence, prayed to dismiss the Second Appeal as well as the cross objection. In support of his contention, the learned Senior Counsel relied upon the judgment of this Court in Vadlamudi Venkateswarlu and another Vs. Ravipati Ramamma and another reported in AIR 1950 MAD 379 (FB).
13. The learned counsel for the cross objectors would contend that the cross objection is maintainable in view of the amendment made in The Code of Civil Procedure during 1976, wherein it has been categorically held that in an appeal filed by the co-defendant, such cross objection is maintainable. To buttress their submission, the learned counsel relied upon the following judgments:-
1. Ghana Nand Vs. Gobardhan and others reported in AIR 8/14 https://www.mhc.tn.gov.in/judis SA.No.12 of 2010 1935 All 404;
2. Sethu Ramalinga Menattarayar Vs. Veerasami Chettiar and others reported in (1970) 83 LW 685;
3. Prasanta Kumar Sahoo and others Vs. Charulata Sahu and others reported in 2023 (2) CTC 755;
4. Periya Chenna Naicken and others Vs. Chenna Naicken and others reported in 2024 (1) CTC 609.
14. I have given my anxious consideration to either side submissions.
15. Now, there are two cases pending for our adjudication. One is, in respect of the Second Appeal. The other one is, the adjudication in respect of the cross objection. This Court deems it appropriate to take up the Second Appeal at the first instance.
16. The main contention put forth by the learned counsel for the appellant is that the suit is hit by partial partition. In support of his contention, the learned counsel relied upon the judgment of this Court rendered in Gandhi Vs. Saminatha Gounder and another reported in 2006 (1) CTC 267. No doubt the partial partition is a valid and significant defence. But, on close reading of the above reported judgment, the plaintiff has categorically admitted the existence of “Kasu Malai” in the common pool. To put it differently, the defendants have raised objection in respect of the 9/14 https://www.mhc.tn.gov.in/judis SA.No.12 of 2010 “Kasu Malai” and such factum was admitted by the plaintiff. Only in that context, this Court has found that the suit is hit by the partial partition.
17. But, in the case on hand, as rightly contended by the learned Senior Counsel, there were no defence taken by the defendants challenging the suit on the ground of partial partition. It is pertinent to mention here that the plaintiff has not put forth what are all the properties of Perumaiammal left out to be included in the suit. In view of the above situation, and as a natural concomitant, the Trial Court as well as the First Appellate Court have not framed any issue in respect of the partial partition. Therefore, this Court is of the firm view that at the Second Appeal stage, without there being any factual foundations by way of a pleading, such defence cannot be taken at the Second Appeal stage.
18. The instant suit can also be looked at in different perspective. Admittedly, the suit has been filed in respect of Arunachalam's property. Though this defendant has raised an objection in respect of the partial partition, as Perumaiammal's other property has not been included, on the face of it, the plaintiff claims right only in deceased Arunachalam's property. Therefore, in such a peculiar circumstances, when a plaintiff has specifically come forward with a suit in respect of deceased Arunachalam's property, the 10/14 https://www.mhc.tn.gov.in/judis SA.No.12 of 2010 non inclusion of Perumaiammal's other property will not be a ground to dismiss the suit, by using the doctrine of partial partition.
19. It is also pertinent to mention here that, though the plaintiff has challenged status of the 5th defendant, whether she is the daughter of deceased Arunachalam, both the Courts below have concurrently found that the 5th defendant is the daughter of late.Arunachalam and that such finding attained finality.
20. Thus, this Court could not find any ground to interfere with the well merited finding of both the Courts below. Further, this Court also could not find any perversity in the finding of the First Appellate Court. However, in the interest of justice, this Court deems it appropriate to give a liberty to the 5th defendant/appellant to work out her remedy according to law in respect of her grand mother Perumaiammal's property.
21. Coming to the next aspect qua regarding the cross objection, the learned Senior Counsel appearing on behalf of the plaintiff would contend that the cross objection is not maintainable. Whereas the counsel for cross objector would contend that the cross objection is maintainable. The short 11/14 https://www.mhc.tn.gov.in/judis SA.No.12 of 2010 point to be considered in the cross objection is that whether in this cross objection, a direction can be issued in favour of the defendants 7 and 8 to have a separate possession of the property with specific boundary according to their sale deed executed by the 5th defendant. The Trial Court found that even under the law of equity, the property covered under Ex.B9 could not be allotted to the share of those purchaser qua defendants 7 and 8. However, the First Appellate Court found that the defendants 7 and 8 may be allotted with specific boundary subject to taking into consideration of the interest of all the parties during the final decree proceedings. But, it is the contention of the learned counsel for the cross objector that under equity, even at this stage they are entitled to have an allotment. But, on close scrutiny of the judgment of the First Appellate Court, this Court could not find any perversity even in this aspect. The First Appellate Court has rightly held that in the final decree proceedings, such question could be worked out according to equity. Thus, this Court could not find any ground to interfere on the well merited judgment of the First Appellate Court. Hence, in view of the above detailed discussions, all the substantial questions of law are answered in favour of the respondents.
22. In the result, this Second Appeal is dismissed. Similarly, there is 12/14 https://www.mhc.tn.gov.in/judis SA.No.12 of 2010 no merit in the cross objection. Hence, the cross objection is also dismissed. However, the liberty is granted to the 5th defendant/appellant to work out her remedy according to law, if she is advised to claim share over Perumaiammal's property. There shall be no order as to costs. Consequently, connected Miscellaneous Petitions are also closed.
16.04.2024 kmi Index : yes/no Speaking/Non Speaking Order Neutral Citation Case: Yes/No To
1. The Principal District Judge, Salem.
2. The Subordinate Judge, Salem.
13/14 https://www.mhc.tn.gov.in/judis SA.No.12 of 2010 C.KUMARAPPAN, J kmi S.A.No.12 of 2010 16.04.2024 14/14 https://www.mhc.tn.gov.in/judis