Kerala High Court
Doraswamy vs Sivasankaran on 3 June, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
MONDAY,THE 17TH DAY OF FEBRUARY 2014/28TH MAGHA, 1935
AS.No. 252 of 2003 ( )
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AGAINST THE JUDGEMENT AND DECREE IN OS 460/1990 of SUB COURT, PALAKKAD
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APPELLANT IN A.S. - DEFENDANT NO.2 IN SUIT:
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DORASWAMY, S/O. LAKSHMI AMMA
RESIDING AT KOOLIMUTTOM, POLPULLY
AMSOM AND DESOM, PALAKKAD TALUK
BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.)
SRI.K.JAYAKUMAR
SRI.P.B.KRISHNAN
RESPONDENTS:
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1. SIVASANKARAN, S/O. THIRUNAVAKKURUSU
UDAYAR, RESIDING AT KOOLIMUTTOM
PULPULLY AMSOM AND DESOM
PALAKKAD TALUK
2. LAKSHMI AMMA, W/O. THIRUNAVAKKURUSU
UDAYAR, RESIDING -DO- -DO- (DIED. LRs RECORDED)
3. BALASUBRAMANIAN, S/O. LAKSHMI AMMAL IN -DO- -DO-
4. BHAGYALAKSHMI, W/O. SHINKALI
RESIDING AT VELLAMKULAM, SANKILI
ILLAM, POLPULLY AMSOM AND DESOM
PALAKKAD TALUK
5. SANTHI, W/O. RAJENDRAN AND D/O. LATE
PARVATHY, RESIDING AT VELLACHAMI
ILLOM, MANAPPARA ROAD, GUZILIAMPARA
DINDIGAL, ANNA DISTRICT
6. SANKILI, S/O. DORASWAMY, RESIDING AT
CHANTHAPETTA, PALLADAM ROAD, THIRUPPUR
THE 2ND RESPONDENT DIED AND IT IS RECORDED THAT APPELLANT, RESPONDENT
NOS. 1, 3 AND 4 ARE HER LEGAL REPRESENTATIVES VIDE ORDER DATED 03.06.2008
ON MEMO DATED 28.11.07-CF 5476/07 (VIDE ORDER SHEET)
AS NO. 252/2003 -2-
R4 BY ADV. SRI.D.KRISHNA PRASAD
R4 BY ADV. SRI.M.HARISHARMA
R1 BY ADV. SRI.T.M.SUNIL
R1 BY ADV. SMT.S.CHITHRA
R6 BY ADV. SRI.R.SURAJ KUMAR
R5 BY ADV. SRI.V.CHITAMBARESH (SR.)
R5 BY ADV. SRI.T.C.SURESH MENON
R5 BY ADV. SRI.JIBU P THOMAS
R5 BY ADV. SRI.APPU P.S.
R3 BY ADV. SRI.SAJAN VARGHEESE K.
R3 BY ADV. SRI.LIJU. M.P
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30-10-2013, THE COURT ON
17-02-2014 DELIVERED THE FOLLOWING:
SD
S.S.SATHEESACHANDRAN,J.
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A.S. No. 252 of 2003
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Dated, this the 17th day of February 2014
JUDGMENT
Preliminary judgment and decree in a suit for partition passed by the learned Sub Judge,Palakkad, is challenged in this appeal. Second defendant is the appellant.
2. Sixteen items of immovable properties were included in the plaint, initially, for partition as belonging to the joint family of plaintiff and defendants 1 to 3 seeking division and allotment of 1/4th share to plaintiff. Thirunavakarasu Udayar (for short Udayar), father of plaintiff and defendants 2 and 3 and husband of first defendant, Kartha of the joint family, had passed away. After his death, plaintiff and defendants 2 and 3, his A.S.252/2003 2 sons, and first defendant, his widow, are entitled to 1/4th share in the plaint properties, was the case of plaintiff. Later, plaint was amended to state that some items included in the plaint schedule were covered by a previous partition (Ext.A1) entered by Udayar and two of his sons (defendants 2 and 3), and, one more item of property was added as available for partition to sharers. Plaintiff was not a party to that deed. Items 3, 6 and 9 to 13 and 17 in the plaint are properties allotted in Ext.A1 partition deed as 'A' schedule to the father, Udayar, and after his death, his widow and sons, all of them, have got equal share in those items, was the case in the amended plaint. Defendants 1 to 3, all of them, resisted the claim for partition over the items covered by 'A' schedule in Ext.A1 deed allotted to Udayar contending that he had executed Ext.B3 will over those items in favour of three persons, widow of Sankaly Udayar(predeceased son of Udayar), second defendant's son and third defendant as A to A.S.252/2003 3 C schedule respectively reserving life interest of his widow, first defendant in all the above properties.
3. Widow of Sankali Udayar and also daughter of a predeceased daughter of Thirunavakarasu Udayar got impleaded in the suit as additional 4th and 5th defendants respectively. Son of second defendant also got impleaded as additional sixth defendant.
4. Additional sixth defendant adopted the contentions of his father. Additional 5th defendant claimed share in the properties as the daughter of Parvathy, predeceased daughter of Udayar and first defendant. Additional fourth defendant impeaching the validity of Ext.A1 partition deed contended that she was entitled to 1/5th share in the properties covered by that deed also. She was not made a party to Ext.A1 and also not provided with share, and therefore the partition effected was not binding on her, was her case. She contended that Ext.A1 was entered only for escaping from payment of levy and she did not A.S.252/2003 4 object to its execution since share of profits had been given to her. She also filed a petition with a schedule including all properties divided under Ext.A1 for division in the suit with other items and allotment of her share in all items.
5. Plaintiff filing a rejoinder disputed the genuineness of Ext.B3 will contending that his father had no capacity to execute the will and it was created fradulently by defendants 1 to 3. Challenge against Ext.A1 partition deed was also resisted by him contending that except 'A' schedule in the deed allotted to his father the other items allotted to other sharers are not available for partition.
6. The court below framed the following issues for adjudication.
1. Whether all the properties included in the plaint schedule are partible?
2. Whether 2nd and 3rd defendants are entitled to any right over plaint A A.S.252/2003 5 and B schedule properties by virtue of the alleged will stated to have been executed by deceased Thirunavukarasu Udayar?
3. If the suit bad for non-joinder of necessary parties?
4. Whether plaintiff is entitled to get any share from plaint schedule property, if so, what is the quantum?
5. Reliefs and costs?
The evidence consisted of PW1 and Exts.A1 to A5 for plaintiff, and DW1 to DW3 and Exts.B1 to B3 for defendants.
7. With the impleadment of additional defendants 4 to 6 in the suit issue raised over nonjoinder of necessary parties became reduntant. Other issues 1, 2 and 4, all of them, were considered together, and, learned Sub Judge entered findings thereof that Ext.A1 partition deed executed by Udayar with his sons, plaintiff A.S.252/2003 6 and defendants 2 and 3, was invalid since additional fourth defendant, widow of Sankaly Udayar, (predeceased son of Udayar,) was not a party to such deed and also not provided with her share in the joint family properties divided. Properties described in the schedule filed by additional fourth defendant, all items covered by Ext.A1 partition deed, according to learned Sub Judge, are to be divided and allotted to the parties-members of the joint family. Ext.B3 will executed by Udayar by which he made bequests over the properties covered by 'A' schedule in Ext.A1 partition deed was held to be valid, but, limited to the extent of his share in the joint family properties. On such reasoning learned Sub Judge held that the 1/5th share of Udayar in the properties i.e 60/300 shares would devolve upon his legatees under Ext.B3 will (defendants 2, 3 and 6), each of them getting 20/60 out of 300 in the joint family properties. Taking into account the death of first defendant pending suit it was A.S.252/2003 7 held that her shares would devolve on her legal heirs, namely, plaintiff, 2nd, 3rd and 5th defendants. On the above conclusions formed learned Sub Judge held that plaintiff will get 67.5/300 shares, second defendant 87.5/300 shares, and third defendant 87.5/300 shares and fourth defendant 30/300 shares, 5th defendant 7.5/300 shares and 6th defendant 20/300 shares in the properties described under the plaint and also items covered by the schedule produced by additional fourth defendant. A preliminary decree was passed allotting shares as indicated to the respective sharers stating that share of defendants 3, 5 and 6 are to be allotted on payment of requisite court fee in the final decree stage. That preliminary decree is challenged in this appeal by the second defendant.
8. The findings entered by learned Sub Judge that Ext.A1 partition deed is not valid is assailed by appellant (second defendant) contending that though plaintiff and additional A.S.252/2003 8 fourth defendant are not parties to the partition deed, both of them accepting that deed have continued in enjoyment of the benefits thereunder and, thus, they are incompetent to impeach its validity. Without framing a separate issue validity of Ext.A1 was considered and decided by the court, and, invalidating that deed partition covered by that deed was reopened, according to appellant. Reopening of the partition covered by Ext.A1 is assailed as unsustainable. Share division made among the parties to the suit is also impeached contending that where Ext.B3 will was found to be genuine full effect of the bequests made under that testament should have been given effect to, but that was not done while passing the preliminary decree.
9. I heard the counsel on both sides.
10. At the time of hearing the thrust of challenge put forth by senior counsel for appellant was over the finding made by learned Sub Judge on the genuineness of Ext.B3 will and giving A.S.252/2003 9 effect to the bequests made under that will in the share allotment of the properties, that too forming a conclusion that Ext.A1 partition deed was not valid and partition made thereunder cannot be recognised since additional fourth defendant was not a party and share not provided to her under that deed. When Ext.A1 partition deed has been found invalid Ext.B3 will executed by Udayar with respect to A schedule property allotted to him under that deed could not have been acted upon is the submission of learned counsel relying on Mohd.Amin and others v. Vakil Ahmed and others(1952 SCR 1133). Reliance is also placed on an unreported decision rendered by a learned single Judge of this court in S.A.707/1993 (K.G.Jayachandra Shenoy v. K.G. Hari and others) by judgment dated 4.4.2002, whereunder the decision of the the apex court referred to was followed, to buttress the challenge against the decree on the argument canvassed. No sustainable challenge is available to the appellant to impeach A.S.252/2003 10 the decree and it does not warrant any interference is the submission of the respective counsel appearing for respondents.
11.Perusing the records it is noticed that learned Sub Judge has passed the preliminary decree for partition over items of properties not covered by plaint, nor asked for plaintiff, but included in a schedule filed by one of the defendants (additional fourth defendant). Plaintiff has sought division only of the items covered by plaint schedule viz seventeen items of properties. Partition over item Nos 1, 2,4, 5, 7, 8, 14, 15 and 16 was sought as joint family properties and, the others, item nos 3,6 and 9 to 13 and 17 as properties allotted to Udayar as 'A' schedule in Ext.A1 partition deed, which, on his death, according to plaintiff,devolved upon his legal heirs, his widow and three sons. Additional fourth defendant widow of Sankaly Udayar, eldest son of Udayar, who predeceased him, contended that Ext.A1 partition deed was invalid and all A.S.252/2003 11 items covered by that deed should also be partitioned among the members of the joint family. She filed a schedule including all items in Ext.A1 for partitioning them also as joint family properties. Learned Sub Judge forming a conclusion that Ext.A1 partition deed was invalid since additional fourth defendant was not made a party and allotted share in the properties,has passed a decree for division of those items also, but, at the same time, recognising the bequests made by Udayar under Ext.B3 will to the extent of his share in the joint family properties. Udayar who obtained 'A' schedule properties in Ext.A1 had executed Ext.B3 will bequeathing those properties to some among his legal heirs reserving life interest of his widow over them. Invalidating Ext.A1, but, upholding the genuineness of Ext.B3 will, and, repelling the challenge of plaintiff that it was fabricated, learned Sub Judge held that properties divided under Ext.A1 are to be partitioned, and, share of Udayar in the joint A.S.252/2003 12 family properties would devolve upon his legatees in Ext.B3 will. A preliminary decree was thereupon passed declaring the share allotment of parties directing division of the properties included in the plaint and schedule of additional fourth defendant in terms thereof in final decree proceedings.
12.The whole approach made by learned Sub Judge to the issues involved for adjudication and, particularly, over the contention raised by additional fourth defendant demanding inclusion of all items covered by Ext.A1 in the suit for partition instituted by another was erroneous and patently unsustainable. In a suit for partition if a defendant filing a schedule ask for inclusion of some additional items also for partition with the properties described and included in the plaint contending those items are also available for partition among the sharers, parties to the suit, to what extent it can be entertained has to be considered. If such a case is presented by one of A.S.252/2003 13 the defendants in the suit, can the court pass a decree for division of those items also without amending the plaint schedule including such items and without the plaintiff agreeing to and seeking amendment of his plaint to include such items. At best defendant in a suit for partition who has a grievance that all items are not included, and as such the suit is bad for partial partition, can raise such a contention seeking inclusion of those items as well for division and allotment to the sharers. Plaintiff is the master of the suit and he is to decide what are the items to be included for partition. In his suit defendants can raise a challenge that it is bad for partial partition would not enable them to seek inclusion of other items for division also unless plaintiff concedes to do so. In a case where plea of partial partition is set up by defendant seeking inclusion of items not included, if possible, court can consider it as a preliminary issue and then pass appropriate orders. Even if any such A.S.252/2003 14 order is passed in the suit for including other items not covered by plaint schedule, but, over which parties are having joint rights, only plaintiff can amend the plaint to include them. If the plaintiff does not desire to include those items for division no defendant without seeking transposition as plaintiff and amendment of plaint including such items, and, if only that is permitted, can have division of such items of properties.. Defendants in a suit for partition are eo-nominee plaintiffs, but, the plaintiff who instituted the suit continues to be its master.Other than taking a contention that suit is bad for partial partition, if all items available for partition are not included in the suit, defendants are incompetent to set up any counterclaim for inclusion of some more properties not included in the plaint for division in the suit instituted by another sharer.
13. Learned Sub Judge in the present case accepting the contention raised by additional A.S.252/2003 15 fourth defendant that all properties covered by Ext.A1 are also available for partition and acting upon the schedule of such properties filed by that defendant has passed a preliminary decree declaring the shares of parties over such items directing division and allotment of such properties to the parties. A schedule with a petition describing some more properties not included in plaint was filed by the additional fourth defendant after filing her written statement. That does not form part of the pleadings of parties. Though learned Sub Judge has granted a preliminary decree over those properties decree drafted by the court below is confined to plaint schedule properties alone. When the plaint has not been amended including the items covered by the schedule filed by additional fourth defendant and no counterclaim by defendants in a suit for partition for inclusion of other items which are stated to have been omitted for division is possible, decree can be only in A.S.252/2003 16 respect of items described in the plaint schedule. Where subject matter of a suit is an immovable property mandatory prescription is that the plaint should contain description of that property with all necessary particulars for its identification. That is not an empty formality. Description of the property given in the plaint has to be entered in the suit register maintained by court which has to be kept as permanent record. A decree passed in a suit involving immovable property, where it is the subject matter, invariably should contain description of that property as described in the plaint schedule. Without taking note of the above safeguards insulated under the Code of Civil Procedure and rules prescribed under the Civil Rules of Practice, and also the incompetency of defendant in a suit for partition to get a decree for division of properties not included in the plaint without including them by amendment of plaint, other than contending that the suit is A.S.252/2003 17 bad for partial partition, if that is so, the court below has passed a preliminary decree directing division of items included in the schedule filed by additional fourth defendant, all items covered by Ext.A1, holding that such deed is void. Preliminary decree so passed is not only irregular but patently erroneous.
14. Where the decree passed is shown to be improper and not sustainable, normally, setting it aside the case has to be remitted for fresh disposal. Still, I have looked into the question whether in the given facts of the case and materials produced a remission is called for. A remission is to be ordered only if it is shown that the suit of plaintiff is bad for partial partition in as much as the items covered by Ext.A1 partition deed have not been included for partition. Such a case of partial partition can be sustained only where it is shown that the contention raised by additional fourth defendant that Ext.A1 is void and not binding on her is A.S.252/2003 18 unimpeachable. I may also point out that plaintiff in his plaint has also raised some allegations that it is not binding on him since he was not made a party when division was effected over some of the properties of joint family by his father Udayar and two sons, second and third defendants. That case canvassed by him has no merit is amply demonstrated by his acceptance of the properties given to him under Ext.A1 partition deed including 'A' schedule properties in that deed, which was allotted to his father, that alone, for division among the sharers with other undivided properties of the joint family in the suit. So the challenge raised against the validity of Ext.A1 by additional fourth defendant alone requires to be examined. Additional fourth defendant who was not made a party to the suit got herself impleaded moving an application I.A.252/2003. In the affidavit sworn to in support of her application for impleadment as a party to the suit her case was that she being the widow of Sankaly Udayar is A.S.252/2003 19 entitled to a share in 'A' schedule property obtained by his father Udayar under Ext.A1. Written statement filed by her would reveal she had knowledge of the partition deed Ext.A1 on its execution by father and two of his sons after the death of her husband and she did not object to the division since they had agreed that they would not do any act harmful to her interest in the properties. She was also provided with share of the income collected from the properties was her further case. Ext.A1 was executed to avoid payment of levy and the property continued to be joint even after division under the deed was her case. After impeaching Ext.A1 in the lines indicated as above as not binding on her, when trial proceeded, it is seen, resisting the challenges against Ext.B3 will executed by Udayar the bequest made in her favour under that testament was sought to be sustained. Udayar had executed Ext.B3 will in respect of properties obtained by him as 'A' schedule under Ext.A1 deed. If Ext.A1 deed goes she could not A.S.252/2003 20 claim the bequest under Ext.B3 will executed by Udayar over 'A' schedule obtained by him under that deed. Additional fourth defendant has no challenge against the decree passed by the Sub Judge holding that Ext.B3 will is genuine. Ext.B3 will of Udayar would also show that additional fourth defendant continued to be a member of the joint family and was taken care of by Udayar and his sons providing her shelter and meeting all her needs. She had knowledge of Ext.A1 partition deed on its execution. She had not objected to the division of properties under that deed though not made a party and was entitled to share as widow of Sankaly Udayar. That being the case,I find challenge raised by her questioning the validity of Ext.A1 partition deed and seeking division of properties covered by that deed also, contending that such properties continue to remain as joint and, thus, liable to be divided among the members of joint family, is unworthy of merit. A.S.252/2003 21
15. Where all parties concede that there was a previous partition under Ext.A1 deed, validity of which alone is disputed by additional fourth defendant, normal presumption if that deed is found valid is that partition is complete in all respects as regards the person and property. That presumption is one of fact and not of law and its strength must vary with the circumstances presented in the case. Severence of joint status may be partial or complete. The members of a joint family mauy effect division and severence only in respect of a portion of the estate retaining the status as joint family and holding the rest of the properties as that of a joint family. Since all parties concede that even after Ext.A1 deed joint family continued and properties not covered by Ext.A1 continued as joint estate whether there was any disruption of the family after Ext.A1 does not arise for consideration in the case. Partition of a portion of a joint family property by itself does not result in the disruption of a joint family and A.S.252/2003 22 whether there was any disruption has to be examined with reference to the intention of parties. When that is taken into account the properties left and undivided even after execution of Ext.A1 as there is no intention by parties to disrupt the joint family status continued as the joint estate of the family.
16. When it is shown that Ext.A1 partition deed is unassailable, is there any merit in the challenge canvassed by plaintiff over the genuineness of Ext.B3 will executed by Udayar has to be examined. He alone has questioned the genuineness of that will. Ext.B3 will has been proved by DW3 an attestor to that testament. Materials tendered in the case clearly establish that Udayar had testamentary capacity when Ext.B3 will was executed and it was made voluntarily and on his free will. No specific challenge has been raised impeaching the genuineness of Ext.B3 will in the appeal, but, finding made by learned Sub Judge over its genuineness after holding that A.S.252/2003 23 Ext.A1 partition deed is void that alone, is impeached relying on the decisions referred to above. In view of the conclusion formed that Ext.A1 partition deed is valid and binding on all parties including additional fourth respondent challenge raised canvassing support from the above referred decisions to impeach the finding of learned Sub Judge that Ext.B3 will is valid after holding that Ext.A1 as invalid, has got only academic value. Further more, it is also noticed, the decisions have no application to the facts involved in the case. The Apex Court in Mohd. Amin and others v. Vakil Ahmed and others (1952 SCR 1133)considered validity of a settlement deed which was challenged on a ground referable to the competency and authority of person who represented as guardian of a minor whose interest in the property was also transacted under the deed. On the finding formed that the person who represented the minor, in the deed as his guardian was incompetent and had no authority to do so, it was held that the settlement A.S.252/2003 24 was void not only against the minor but against all the parties including those who are so juris. The above decision was followed in the unreported decision in Jayachandra Shenoy's case in which also challenge was over the validity of a settlement deed where one among the parties having interest over the property was not a party to the deed. The two decisions referred to have no application in examining the testamentary succession made by a Hindu in disposing his property by will. Explanation of Section 30 of the Act recognise right to dispose by will or other testamentary disposition the interest of a male Hindu in a Mitakshara coparcenary property. So much so, even assuming that Ext.A1 partition deed, for any reason, is found to be void, that by itself would not invalidate the disposition made by Udayar under Ext.B3 will. However, as already pointed out earlier, where Ext.A1 deed has been found to be valid challenge raised to impeach Ext.B3 on the finding entered by Sub Judge based on the above A.S.252/2003 25 decisions has only to be discarded as of no consequence.
17.I have already found that the finding of learned Sub Judge that Ext.A1 partition deed is void is wrong. Under Ext.A1 partition deed Udayar had obtained 'A' schedule properties and Ext.B3 will was executed by him over such properties making bequests in favour of third defendant, fourth defendant and additional sixth defendant, (son of second defendant) reserving the life interest of his wife (first defendant). When Ext.B3 will is found to be genuine the legatees under the will in terms of the bequests made in their favour have right over 'A' schedule property in Ext.A1. So item no.3, 6, 9 to 13 and 17 included in the suit which are covered by 'A' schedule in Ext.A1 and Ext.B3 are not available for partition, and are to be excluded.
18. What is available for partition among the sharers, members of the joint family, is only item nos.1,2,4,5,7,8,14,15 and 16 scheduled in the A.S.252/2003 26 plaint. Those properties alone remained as joint estate after division of the other items of joint family under Ext.A1 partition deed. In effecting division of such items among the parties shares available to them in the properties has to be fixed. Though additional fourth defendant was not made a party in Ext.A1 partition deed entered by Udayar and his two sons, her entitlement as a sharer being the widow of Sankaly Udayar, predeceased son of Udayar, over the items which continue to remain as joint cannot be disputed. Sankaly Udayar who predeceased his father died in 1967. Section 6 of Hindu Succession Act 1956, for short the Act, as it stood before the amendment under Act 39 of 2005, and applicable to the present case, spells out that on the death of a Hindu having an interest in a Mitakshara coparcenary property, after the commencement of the Act, if he had surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims A.S.252/2003 27 through such female relative, his interest in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession and not by survivorship. So, when Sankaly Udayar predeceased his father leaving behind his widow, additional fourth defendant, and, his mother, first defendant, a deemed partition over the properties of the family has to be recognised, and given effect to,for devolution of his share in the properties which were available immediately before his death to his heirs aforementioned. At the time of his death joint family consisted of Udayar and his four sons as coparcenaries. On the death of Sankaly Udayar a deemed partition having taken place over the joint family properties, his widow and mother, his successors falling under Class I of the Schedule, both of them together, would take 1/5th share(60/300) in the properties. First and fourth defendant as legal heirs of Sankaly Udayar would get 30/300 shares each in the properties. On the death of Udayar in 1976 his rights in the A.S.252/2003 28 properties would devolve upon his widow, three sons (plaintiff, first defendant and second defendant)and widow of predeceased son ( additional fourth defendant) and daughter of predeceased daughter(additional fifth defendant), all of whom are his heirs falling under Class I of the Schedule. Additional sixth defendant, son of second defendant, not being a heir under Class I will not be entitled to succeed to the interest left behind by Udayar. So 1/5th share available to Udayar is to be divided equally among plaintiff and defendants 1 to 5 (60/300/6) i.e 10/300 for each of them. Pending suit first defendant, widow of Udayar, has also passed away. Her share in the property which she had obtained as one among the two heirs of Sankali Udayar, her predeceased son (30/500), and Udayar, her husband, as one among his six heirs (10/500), both together forming 40/300, would devolve upon her heirs determinable under Section 15(a) of the Act. The heirs who are entitled to succeed her are her sons, A.S.252/2003 29 (plaintiff and defendants 2 and 3) and daughter of predeceased daughter( additional fifth defendant), all of them getting equal share (40/300) i.e 10/300 each. Share allotment of parties to the suit in the properties which are found partible as belonging to the joint family namely, item nos 1,2,4,5,7,8,14,15 and 16 would be thus:- Share of plaintiff, second and third defendant, each of them, 80/300, fourth defendant, 40/300 and fifth defendant 20/300.
The decree passed by the court below fixing the shares of the parties and directing division of all items in the plaint schedule and also schedule filed by the fourth defendant is set aside. A preliminary decree is passed in the suit declaring that plaintiff, second and third defendants, each of them, are entitled to 80/300, fourth defendant 40/300 and fifth defendant 20/300 in plaint item nos 1,2,4,5,7,8,14,15 and 16. Additional sixth defendant is not entitled to any share. The other items in the plaint, covered by A.S.252/2003 30 'A' schedule in Ext.A1 partition deed, item nos.3,6,9,10,11,12,13 and 17 are not available for partition and legatees under Ext.B3 will alone, in accordance with the bequests made,have right over such items. The legatees have to enforce their rights over those items, if need be, in appropriate proceedings, and no decree is passed or granted over those items. Direction of court below to defendants who have not paid court fee to remit fees in final decree proceedings to have allotment of their share, which is not proper, is modified fixing a time limit of three months from today to remit the fees to claim their share in the suit.
Plaintiffs and defendants, who have paid court fee for getting division and allotment of their shares, and other defendants who are given time for payment of court fee, on doing so, can apply for passing of final decree. Equities, if any, are available to the parties can be canvassed by them, and decided, when actual division is A.S.252/2003 31 effected in final decree proceedings. If any equity is claimed by one or other party court below shall consider it and pass appropriate orders thereof.
Appeal is disposed of as indicated above directing both sides to suffer their costs.
S.S.SATHEESACHANDRAN JUDGE tpl/-
A.S.252/2003 32
S.S.SATHEESACHANDRAN,J.
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A.S.No.252 of 2003
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JUDGMENT
17TH FEBRUARY,2014
A.S.252/2003 33