Madras High Court
Siluvai Antony Savarimuthu vs Xavier Antony Cruz
Author: R.Vijayakumar
Bench: R.Vijayakumar
S.A(MD)No.208 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 21.02.2022
DELIVERED ON : 28.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A(MD)No.208 of 2019
and
C.M.P(MD)No.4313 of 2019
1.Siluvai Antony Savarimuthu
2.S.A.Boras ... Appellants/
Appellants/Defendants 1 & 3
Vs.
1.Xavier Antony Cruz
2.Sugumari
3.Vinotha ... Respondents 1 to 3/
Respondents 1 to 3/Plaintiffs
4.Levin Fernando ... 4th Respondent/
4th Respondent/
2nd Defendant
PRAYER : Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree, dated, 23.10.2018, passed in
A.S.No.262 of 2017 on the file of the Sub Court, Tiruchendur confirming
the judgment and decree, dated, 11.10.2014, passed in O.S.No.143 of 2010
on the file of the District Munsif Court, Tiruchendur.
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https://www.mhc.tn.gov.in/judis
S.A(MD)No.208 of 2019
For Appellants : Mr.S.Selva Aditya
for Mr.G.Prabhu Rajadurai
For Respondents : Mr.M.P.Senthil
for R1 and R2
No appearance
for R3 and R4
JUDGMENT
The defendants 1 and 3 are the appellants herein.
2. The plaintiffs filed a suit for partition of their 1/3rd share in the suit schedule properties and for a permanent injunction as against the 1st defendant, not to put up any construction in the suit schedule properties till 1/3rd share is allotted to the plaintiffs. The suit was decreed by the trial Court as prayed for. The defendants 1 and 3 filed A.S.No.262 of 2017 before the Sub Court, Trichendur. The learned Subordinate Judge dismissed the appeal. As against the concurrent findings, the defendants 1 and 3 have filed the present second appeal.
3. The plaintiffs contended that the suit schedule properties were originally owned by one Yesuvadian Fernando. The said Yesuvadian 2/12 https://www.mhc.tn.gov.in/judis S.A(MD)No.208 of 2019 Fernando has executed a registered settlement deed on 27.01.1939 under Exhibit A.1. As per the said settlement deed, his son Xavier Antony Cruz Fernando will be entitled to a life interest. After the life interest, the said properties will absolutely belong to the sons of Xavier Antony Cruz Fernando, namely, Thommai Yesuvadian Fernando, Yesuvadian Fernando and Siluvai Antony Savarimuthu. Apart from the suit schedule properties, all other properties covered under the settlement deed have already been orally partitioned. The plaintiffs are the legal heirs of Thommai Yesuvadian Fernando. The 2nd defendant is the legal heir of Yesuvadian Fernando. Hence, according to the plaintiffs, the plaintiffs are entitled to 1/3 rd share jointly and the defendants are entitled to 1/3rd share jointly. Since the defendants have not come forward for amicable settlement of partition, the present suit for partition has been filed.
4. The defendants filed a written statement contending that the plaintiff has got one more sister, who was not been impleaded in the present suit and hence, the suit is bad for non-jointer of necessary parties. The defendants further contended that the 2nd defendant has executed a sale 3/12 https://www.mhc.tn.gov.in/judis S.A(MD)No.208 of 2019 agreement in favour of the 3rd defendant. For enforcing the said agreement, the 3rd defendant filed a suit for specific performance in O.S.No.111 of 2008 on the file of District Munsif Court, Trichendur, which was decreed. Based upon the said decree, a sale deed was executed by the Court in favour of the 3rd defendant on 03.04.2009. A perusal of the said sale deed will disclose that 1/3rd share of the 2nd defendant was a valued for Rs.1,48,600/-(Rupees One lakh Forty Eight Thousand Six Hundred only) in the said sale deed. Hence, the present suit property valued for Rs.1,50,000/-(Rupees One Lakh Fifty Thousand only) for whole of the property is a clear under valuation. The defendants further contended that the plaintiffs are not in joint possession of the suit schedule properties and hence, the Court fee paid under Section 37(2) of Tamil Nadu Court Fees Act is erroneous and they should have paid Court fee under Section 37(1) of Tamil Nadu Court Fees and Suit Valuation act.
5. The trial Court after careful consideration of the pleadings, oral and documentary evidence, came to a conclusion that the possession of the one of the co-owners is considered to be the possession on behalf of other 4/12 https://www.mhc.tn.gov.in/judis S.A(MD)No.208 of 2019 co-owners also and hence, the Court fee paid under Section 37(2) of Tamil Nadu Court Fees Act is correct. The trial Court also found that the sale deed executed in favour of the 3rd defendant under Exhibit B.1 by the Court though reflects the guideline value at Rs.1,48,600/-(Rupees One lakh Forty Eight Thousand Six Hundred only) the sale consideration mentioned in the document is just Rs.70,000/-(Rupees Seventy Thousand only). Hence, the contention of the defendants that the suit has been under valued is not legally sustainable. Based upon the said findings, the trial Court decreed the suit as prayed for.
6. The defendants 1 and 2 filed A.S.No.262 of 2017 before Sub-Court, Trichendur. The learned Subordinate Judge after independent analysis and consideration of oral and documentary evidence, came to the conclusion that except the suit schedule properties, all other properties mentioned in the settlement deed have already been partitioned.
7. The First Appellate Court also arrived at a finding that the suit has been properly valued and the contention of the defendants that the suit has 5/12 https://www.mhc.tn.gov.in/judis S.A(MD)No.208 of 2019 been under valued is not correct in view of the recitals in Exhibit B.1 document. The First Appellate Court also arrived at a finding that even assuming that the defendants are in possession of the suit schedule properties, the said possession is also on behalf of the plaintiffs and hence, the plaintiffs being in joint possession, the Court fee paid under Section 37(2) Tamil Nadu Court Fees and Suit Valuation Act is correct. The First Appellate Court also found that without division of properties by metes and bounds, if the defendants are permitted to put up any construction in the suit schedule properties that would upset the value of properties at the time of passing of the final decree and hence, proceeded to grant a decree for permanent injunction also. As against the same, the present second appeal has been filed.
8. The learned counsel for the appellants contended that the valuation made by the plaintiffs with regard to the prayer in the suit schedule properties is erroneous and if properly valued the District Munsif Court may not have pecuniary jurisdiction to entertain the suit. The learned counsel for the appellants further contended that the daughter of Thommai Yesuvadian 6/12 https://www.mhc.tn.gov.in/judis S.A(MD)No.208 of 2019 Fernando, namely, the sister of the plaintiff has not been impleaded and hence, the same is fatal. According to the learned counsel for the appellants, the Courts below ought to have dismissed the suit for partition on the ground of non-joinder of necessary parties. The substantial questions of law have also be raised only based upon the alleged under valuation of the suit and the non-joinder of the sister of the plaintiff.
9. I have carefully considered the submissions made on the side of the appellants.
10. The relationship of the parties is admitted. The parties being Christians, the properties have to be considered as separate properties. There is no dispute that the settlement deed has been executed under Exhibit B.1 by Yesuvadian in favour of his 3 grand-sons jointly. Hence, it is clear that all the 3 grand sons will each get 1/3 rd share in the suit schedule properties.
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11. Three defences have been raised by the defendants 1 and 2 in the written statement. According to the 3rd defendant, the 2nd defendant has entered into a sale agreement with the 3rd defendant for alienating his 1/3rd share. Due to non-performance, the 3rd defendant filed a suit for specific performance and got a sale deed executed through Court. According to the 3rd defendant, the said sale deed, namely, Exhibit B.1 reflects the value at Rs.1,48,000/-(Rupees One lakh Forty Eight Thousand only) for 1/3rd share of the 2nd defendant. If the 1/3rd share is Rs.1,48,000/-(Rupees One lakh Forty Eight Thousand only) then the valuation of the whole of the property is more than Rs.4,50,000(Rupees Four Lakhs Fifty Thousand only), which would exceed the pecuniary jurisdiction of District Munsif Court. A perusal of Exhibit B.1 shows that though the guideline value was mentioned at Rs.1,48,000/-(Rupees One lakh Forty Eight Thousand only), the sale consideration paid by the 3rd defendant was shown as Rs.70,000/-(Rupees Seventy Thousand only) for the 1/3rd share of the 2nd defendant. Hence, the Courts below were right in rejecting the plea of under valuation raised by the defendants based upon Exhibit B.1.
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12. In a suit of partition, the possession of one of the co-owners is also on behalf of other co-owners. The defendants have not pleaded ouster and they have not produced any documents to establish that the plaintiffs were excluded from the possession of the suit schedule properties. Hence, the payment of Court fee under Section 37(2) of Tamil Nadu Court Fees and Suit Valuation Act can not be found fault with.
13. The defendants have further contended that the plaintiff has not impleaded his sister. Being a sharer, non impleadment will result in non-joinder of necessary parties. The Courts below ought to have dismissed the suit on that ground.
14. The learned counsel appearing for the respondents has sited 1970 1MLJ page 243 to impress upon the Court that the suit for partition gets terminated only after passing of the final decree and any party can be added before that. That apart, the Hon'ble Supreme Court in a judgment reported in Vineeta Sharma Vs. Rakesh Sharma reported in 2020 (9)SCC Page 1 has held that daughters could be impleaded even during the final decree 9/12 https://www.mhc.tn.gov.in/judis S.A(MD)No.208 of 2019 proceedings and shares could be re-worked in the final decree proceedings. Hence, the suit need not to be dismissed for not impleading the sister of the plaintiff.
15. In view of the above said discussion, the Courts below have arrived at a correct findings and decreed the suit as prayed for. No question of law much less a substantial question of law arises for consideration in the second appeal. The Second Appeal is dismissed. No costs. Consequently, connected Civil Miscellaneous Petition is closed.
28.02.2022
gbg
Index : Yes / No
Internet : Yes / No
Note :
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned. 10/12 https://www.mhc.tn.gov.in/judis S.A(MD)No.208 of 2019 To
1.The Sub Court, Tiruchendur.
2.The District Munsif Court, Tiruchendur.
3.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.
11/12 https://www.mhc.tn.gov.in/judis S.A(MD)No.208 of 2019 R.VIJAYAKUMAR,J.
gbg Pre-delivery Judgment made in S.A(MD)No.208 of 2019 28.02.2022 12/12 https://www.mhc.tn.gov.in/judis