Madras High Court
Karuppayammal vs Samiyappa Gounder on 30 June, 2017
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.06.2017
Reserved on : 20.06.2017
Pronounced on : 30.06.2017
Coram
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
A.S.(MD) No. 199 of 2005
Karuppayammal ... Appellant/Plaintiff
-Vs-
1.Samiyappa Gounder
2.Boobathi
3.Mariyammal
4.Arukkaniyammal ...Respondents/Defendants
PRAYER:- This Appeal Suit has been filed under Section 96 of Civil
Procedure Code, against the Judgment and Decree, dated 16.08.2005 made in
O.S.No.247 of 2004 on the file of Additional District and Sessions (Fast
Track) Court, Dindigul.
!For Appellant : Mr.V.Sitharanjandas
^For R1, R2 and R4 : Mr.K.P.Narayanakumar
For R3 : No Appearance
:JUDGMENT
This appeal has been filed by the plaintiff in O.S.No.247 of 2004, challenging the Judgment and Decree, dated 16.08.2005, passed by the Additional District and Sessions Judge, Fast Track Court, Dindigul.
2. O.S.No.247 of 2004, had been filed by the appellant, Karuppayammal, seeking partition and separate possession of the suit properties. The plaintiff claimed one half share in the suit properties. In the suit schedule, the plaintiff had mentioned thirteen items. Item No.1 of the suit property is a land measuring 77 cents out of 3 acres and 48 cents, in Survey No.347/A1, in Palapatti Village, Vedachandur Taluk, Dindigul District. The Item Nos. 2 to 13 of the suit properties are also vacant lands in Survey No.179/1B?0.45.5 Hectares, Survey No.179/1E - 0.06.6 Hectares, Survey No.181/5?0.11.5 Hectares, Survey No.182/3C- 0.14.5 Hectares, Survey No.181/1?0.07.5 Hectares, Survey No.182/3A-0.08.0 Hectares, Survey No.321/1B6-0.16.5 Hectares, Survey No.321/1B2-0.13.5 Hectares, Survey No.321/1B3-0.04.0 Hectares, Survey No.152/2-0.3.11 acres, Survey No.151/2A-0.0.17 cents and Survey No.176/2- 0.5.41 Hectares.
3. In the plaint, the plaintiff had stated that the first defendant, R.Samiyappa Goundar, was her father and the third defendant Mariyammal was her mother. During subsistence of the marriage between them, the first defendant married the fourth defendant one Arukkaniyammal, as his second wife. They had a son namely, Boopathy, who is the second defendant. In the plaint, the plaintiff claimed that there was another son, born to the first and the third defendants, namely, Ramasamy, who was not shown as a defendant in the suit because there was an oral partition between him and the first defendant and some properties were allotted to him. The plaintiff claimed that the suit properties are available for partition. She further claimed that the first defendant married the fourth defendant during the subsistence of his marriage with the third defendant. Hence, the fourth defendant would not have any share and the second defendant would get a share from the father's properties alone. Consequently, the suit has been filed for partition and separate possession of the suit properties.
4. In the written statement, it had been stated that the properties have been purchased on 10.10.1975 and further by gift deeds dated 03.03.1998 and 22.08.1983, the suit properties had already been gifted to the second defendant and two other sons and to the brothers of the first defendant. It had also been stated that the third defendant had left the house in the year 1975 and was living separately. It was further stated that the other son Ramasamy, was not joined as a party and further the properties allotted by oral partition were not included in the suit and consequently, the suit is bad for non joinder of necessary parties and for seeking impartial partition.
5. On the basis of rival pleadings, the learned Additional District Court / Fast Track Court, Dindigul, had framed the following issues for trial:
1.Whether the plaintiff is entitled to one half share in the suit property?
2.Whether the plaintiff is entitled to future mesne of profits?
3.Whether the plaintiff is a coparcener and has a joint ownership in the suit property?
4.To what relief the plaintiff is entitled to?
6. During the trial, on the side of the plaintiff, the plaintiff examined herself as PW-1. On the side of the defendant, the first defendant examined himself as DW-1 and also examined four other individual witnesses as DW-2 to DW-5. On the side of the plaintiff, Ex.A.1 to Ex.A.12, were marked. On the side of the defendants, Ex.B.1 to Ex.B.12, were also marked. Among the documents filed on the side of the plaintiff, Ex.A.2, dated, 31.10.1980, is the partition deed between Samiyappan and Mariyammal, Ex.A.5, dated 03.03.1998, is the settlement deed executed by Rengappa Gounder in the name of the second respondent, Ex-A6, Ex-A7, Ex-A8 and Ex-A9 are pattas in the name of first defendant, with respect to the Item Nos.2, 3, 4, 5, 6, 7, 8 and 9 of the suit properties. .On the side of the defendant, Ex.B.1, dated 31.10.1980, is the maintenance release deed executed by the third defendant, Ex.B.6, dated 10.10.1975, is a sale deed in the name of Rangappa Goundar, and the other documents are revenue records marked during the trial. Ex.X.1 and Ex.X.2 were also marked, which are promissory notes executed by the first defendant, dated 13.07.1977 and 15.03.1977.
7. On consideration of the oral and documentary evidence, the learned Judge found that the properties mentioned in the plaint were not available for partition and also held that the plaintiff is not entitled to any share in the suit properties and consequently dismissed the suit. The plaintiff has filed the present appeal challenging the said judgment and decree, dated 16.08.2005, dismissing the suit.
8. The relationship between the parties are both admitted and also disputed. The appellant/plaintiff claimed to be the daughter of the first respondent. The first respondent's wife was the third respondent, namely Mariyammal. However, the first respondent has claimed that there is 10 year age difference between him and the third respondent. She is elder to him. It had been stated that subsequently, the marital life was not happy and it was not peaceful. He further stated that the appellant herein was not even born to him. The first respondent had remarried the fourth respondent and they had a son, who is the second respondent.
9. It is the case of the appellant that there was another son, her own blood brother named Ramasamy, who had left the house and some properties was allotted to him, through an oral partition between him and the first respondent. He was not impleaded as a party in the suit. It is also admitted that there are several other properties which are available for partition. With respect to the properties included in the appeal, it is seen from the documents filed that the patta for the item (2) of the suit property, Ex.A.6, stands in the name of the first respondent. The patta with respect to items (3), (4) and (5) of the suit property, Ex.A.7 also stands in the name of the first respondent. The patta with respect to items (6) and (7) of the suit property, Ex.A.8 also stands in the name of the first respondent. The patta with respect to items (8) and (9) of the suit property, Ex.A.9 also stands in the name of the first respondent. The patta with respect to item (10) of the suit property, Ex.A.10, also stands in the name of first respondent. Consequently, the Revenue records are in the name of the first respondent. Ex.A.5 is the settlement deed executed by Rengappa Gounder in the name of the second respondent dated 03.03.1998.
10. In this connection, the genealogy of the relationship and the title to the suit properties have to be discussed. The original owner Rengappa Gounder, had three sons namely, Samiyappa Gounder, who was the first respondent, Ramasamy and Kanniappan. Between the three brothers, there was an oral partition in the year 1972. Subsequently, through Ex.B6 sale deed, dated 10.10.1975, Rengappa Gounder purchased the property from one Perumal. Thereafter, he wrote a gift settlement deed, by Ex.A.5, dated 03.03.1998, in favour of the second respondent. Ex.A.6, which is the patta stands in the name of the first respondent. With respect to items (2), (3), (4), (5), (8) and (9) of the suit properties, they have produced Ex.B.8, which is patta in the name of the second respondent. With respect to the item (10) of the suit property, they have also produced Ex.B.9, which is the patta in the name of the second respondent. With respect to items (6) and (7) of the suit property, they have also produced Ex.B.10, which is the patta in the name of the second respondent. They have also produced Ex.B11, which is patta in the name of the fourth respondent and Ex.B.12, which is patta in the name of the first respondent. It is therefore seen that item (1) have been allotted to the first respondent, which has also been sold to third parties by sale deed, dated 09.06.1982, which has been marked as Ex.B.3.
11. As seen from the above facts, which relates to the availability and non availability of the properties for partition, the admitted fact is that one son who is the blood brother of the appellant by name Ramasamy was not included as a party. This suit being for partition, is bad for non-joinder of necessary party and non-joinder is fatal to the case. Similarly, it is also admitted by the appellant that there were other properties which had been orally given to Ramasamy, which was not included in the suit schedule properties in the plaint. Again the suit is bad as in a suit for partition, all properties have to be included. Impartial partition is an exercise which Courts have to avoid, since it would lead to further litigations with respect to the properties left out. Relitigation would amount to abuse of process of Law and Court
12. In this connection, in the decision of Hon'ble Supreme Court reported in (1994) 4 SCC 294 (Kenchegowda Vs Siddegowda), wherein a co-owner had not been impleaded and properties were left out for consideration in a partition suit before the Court, it had been held that the suit suffered from fatal defects and had to be dismissed. It was held in Paragraph Nos.15 and 16 as follows :-
?15. Equally incorrect is the assumption made by the High Court that the court of first appeal had not accepted the case of partition. On the contrary, what the appellate court has found is as follows:
?With regard to the partition alleged by the defendants even though the plaintiff's own witness PW.1 has admitted that there was a partition amongst the plaintiff's mother Ningamma, himself and the 1st defendant in the two suits. There is no satisfactory evidence to prove that in that partition the suit property was allotted to the share of the 1st defendant in the two suits jointly.?
16.Therefore, what has been held is that the property had not been allotted in favour of the first defendant in the partition. That is very different from holding that the case of partition had not been accepted by the first appellate Court. This being so, a decree for partition could not have been passed on a mere application for amendment. In fact, as rightly urged by the learned counsel for the appellant that the causes of action are different and the reliefs are also different. To hold that the relief of declaration and injunction are larger reliefs and smaller relief for partition could be granted is incorrect. Even otherwise, a suit for partial partition in the absence of the inclusion of other joint family properties and the impleadment of the other co-sharers was not warranted in law. Thus, we find no difficulty in allowing these appeals which are accordingly allowed. The judgment and decree of the trial court as affirmed by the first appellate court are restored. However, there shall be no order as to costs.?
13. The said judgment is squarely applicable to the facts of this case since Ramasamy, the blood brother of the appellant has not been impleaded as party to the suit. He is a necessary party. According to the appellant, there was an oral partition on 31.10.1980 between the first respondent and said Ramasamy. The oral partition cannot have any legal effect. It cannot be recognized in a Court of Law. Consequently, the properties covered in the said oral partition have to be included in the suit. They have not been included. I hold that the suit for partial partition is not maintainable. On the ground of non-joinder of necessary party and on the ground that all properties were not included in the suit for partition, the suit itself is not maintainable. Consequently, this appeal suit fails. However, the right of the appellant to claim a share has not been discussed. Since the appeal and consequently the suit have been dismissed only on the ground of non-joinder of necessary party and on the ground that all available properties were not included in the schedule to the plaint, I further hold that the dismissal of this appeal will not disentitle or preclude the appellant from instituting a fresh suit for partition, by including all necessary parties and all properties available for partition. The findings of the trial Court with respect to entitlement of the appellant to seek partition have no legal force, of the appellant to seek partition have no legal force, since they have been rendered overlooking the legal aspect of non-joinder of necessary party and non-inclusion of some properties in the schedule to the plaint.
14. In the result, with above observation, this appeal suit is dismissed. No costs. The Judgment and Decree, dated 16.08.2005 made in O.S.No.247 of 2004 on the file of Additional District and Sessions (Fast Track) Court, Dindigul is confirmed.
To The Additional District and Sessions Judge, Fast Track Court, Dindigul..