Madras High Court
R.Saraswathi vs B.Gangi Ammal on 26 July, 2022
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 26.07.2022
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
S.A.No.813 of 2009
R.Saraswathi ...Appellant
Vs.
1. B.Gangi Ammal
2. B.Halu Ammal
3. B.Kuppi Ammal
4. B.Masi Ammal
5. Panchali
6. K.Shanmugam
7. K.Chandran
8. Masiammal
9. Senthilkumar
10. Ravikumar
11. Sundari
12. Nanjundan
13. Haldurai
14. K.B.Mani
https://www.mhc.tn.gov.in/judis
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15. Palakumammal@Rukmani
16. K.B.Jayaraman
17. K.B.Joghee
18. M.Perumal
19. Maruthai
20. K.B.Viswanathan
21. K.Ganapathy
22. Chellapappa
23. Vallaiammal
24. R.Munian
25. Rajathi
26. Narayanawamy
27. K.Ammal
28. Singaravelu
29. K.Ramanathan
30. Chellammal
31. Kulla Gowder
32. K.K.Bellie
33. Kuppaimmal
34. Devi
35. K.J.Shankar
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36. Prabhu
37. T.Bellie
38. Gangiammal
39. K.M.Subramani
40. K.K.Halan
41. B.M.Akkamma
42. K.J.Sivaraman
43. Philomina
44. Stella Pitchamuthi
45. Santhalimary
46. Pushparani
47. Chalinamari
48. Maira Prakasam
49. A.Lourdusamy
50. Hirudaya Mary
51. P.Kannaiah
52. A.Sami
53. Bojan @ Gujjan
54. K.J.Ari
55. Lakshmiammal
56. Parvathi
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57. Savithri
58. Raghu
59. Halammal
60. Kadjiammal
61. Parvathi
62. Vijayalakshmi
63. A.K.Venkatraman
64. A.K.Viswanathan
65. Chinthamani
66. K.B.Devaraj
67. Vijaya @ Vijayalakshmi
68. K.J.Shankar
69. Mukesh Kothari
[R.67 to R.69 were impleaded vide order dated
20.02.2018 made in C.M.P.No.1/2011 by
Hon'ble MGRJ]
... Respondents
The Second Appeal is filed under Section 100 of CPC, against
the judgment and decree dated 23.11.2005 in A.S.No.23 of 2004 on
the file of the Subordinate Judge of Nilgiris at Uthagamandalam
reversing the judgment and decree dated 31.01.2003 in O.S.No.125 of
1985 on the file of District Munsif, Coonoor.
https://www.mhc.tn.gov.in/judis
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For Appellant : Mr.A.R.L.Sundaresan,
Senior counsel
for Ms.A.L.Gandhimathi
For Respondents : Mr.Krishna Prasad
[for R.2, R.4 to R.14]
JUDGMENT
The plaintiff in O.S.No.125 of 1985 on the file of District Munsif Court at Coonoor is the appellant herein.
2. The said suit had been filed for partition of the suit schedule properties into 96 equal shares and to allot 11 such shares to the plaintiffs and for consequential reliefs of actual allotment in the aforesaid manner and for costs.
3. By judgment dated 31.01.2003, the District Munsif Coonoor had entered into a discussion on the oral and documentary evidence adduced and held that the plaintiff was entitled to the relief of partition and separate possession as claimed in the suit and decreed the suit.
4. Aggrieved by the said judgment, the defendants who were aggrieved, filed A.S.No.23 of 2004. The Appeal Suit came up for consideration before the Subordinate Judge of Nilgiris at Uthagamandalam. By judgment dated 23.11.2005, the learned Sub https://www.mhc.tn.gov.in/judis 6 Judge had interfered with the decree granted by the Trial Court and allowed the Appeal Suit and dismissed the Original Suit granting partition.
5. During the course of the appeal, a perusal of the recording shows that though further documents had been marked as Exhibits, there is no reference to any Interlocutory Application having been filed under Order 41 Rule 27 of C.P.C.
6. It is also seen that the First Appellate Court had framed only one point for consideration under Order 41 Rule 31 C.P.C. namely 'whether the appeal should be allowed or not.' Aggrieved by such judgment of the First Appellate Court, the plaintiff has filed the present Second Appeal. The Second Appeal had been admitted on the following 3 substantial questions of law;
"(i) Whether the First Appellate Court below is correct in reversing the judgment and decree passed by the trial Court on the ground of non-joinder of parties?
(ii) Whether the First Appellate Court is correct in finding that the appellant / plaintiff could have filed the suit for declaration and recovery of possession, instead of the https://www.mhc.tn.gov.in/judis 7 suit for partition and separate possession.
(iii) Whether the First Appellate Court is right in reversing the judgment and decree passed by the trial Court and dismissing the suit on the ground of relinquishment of right by the mother of the appellant / plaintiff in the absence of any supporting documents?"
7. Pending the appeal, 3 further respondents have been impleaded as 67, 68 & 69 respondents. It is also informed that pending the appeal, 1 and 3rd respondents had died but their legal heirs are already on record.
O.S.No.125 of 1985 (District Munsif Court, Coonoor):
8. The suit had been filed seeking partition and separate possession. It was claimed that the properties in the schedule to the plaint originally belong to Karia Nanja Gowder who had 3 sons K.N.Bellie Gowder, K.N.Kullan and K.N.Ramakrishnan @ K.N.Joghee. It was claimed that the 3rd son K.N.Ramakrishnan pre-deceased his father and died in the year 1969. The plaintiff is his daughter. The 1- 11 defendants were the legal representatives of the first and second sons namely K.N.Bellie Gowder and K.N.Ramakrishnan. The plaintiff in https://www.mhc.tn.gov.in/judis 8 her capacity as grand daughter claimed a share in the said properties of her paternal grand father claiming that owing to the death of grand father she was independently entitled to share in the properties. It had also been stated that she had issued a notice on 22.08.1973 seeking partition and separate possession, for which a reply was also issued on 15.09.1973, in which it was stated that a panchayat would be held and issues could be settled amicably. However, since effective settlement had not been reached, necessity to institute the suit had arisen. Her mother was shown as the third defendant. It was also claimed that substantial properties were being dealt with and this necessitated the purchasers to be impleaded as parties to the suit. In view of the above facts, the plaintiff had filed the suit for partition and separate possession.
9. The 3rd defendant had filed a written statement which was adopted by 1, 2, 4 – 11 defendants. The fact that Karia Nanja Gowder had 3 sons namely K.N.Bellie Gowder, K.N.Kullan and K.N.Ramakrishnan @ K.N.Joghee was admitted. However, it was stated that K.N.Ramakrishnan had actually died in the year 1950 and not in the year 1959. It was also stated that the plaintiff was not actually born to K.N.Ramakrishnan. It was also stated that one of the https://www.mhc.tn.gov.in/judis 9 sons of K.N.Bellie Gowder has not been made a party to the suit. It was further stated that the mother of plaintiff / widow of K.N.Ramakrishnan left to her parents' house, leaving her marital house and therefore it was claimed that she had voluntarily relinquished her share in the property. It was therefore claimed that the suit should be dismissed as it was stated that the plaintiff was not entitled to the claim of share in the property.
10. An Additional written statement was filed by defendant No.11 which was adopted by defendants 31, 35, 54 and 55. They took the stand that K.N.Ramakrishnan did not die in the year 1959 but died in the year 1950. They also stated that there were encumbrances made over the properties and also stated that the widow of K.N.Ramakrishnan left for her parents' house immediately after his death and therefore claimed implicit relinquishment of her share of the property. It had also been stated that while the suit was pending, the plaintiff had attempted to take possession of the properties and there were also mutations done by the Revenue Authorities. This necessitated filing of a writ petition in W.P.No.14370 of 1977, wherein an interim injunction was also granted. It was stated that writ petition was still pending.
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11. The 12th defendant filed a written statement. She was widow of K.N.Ramakrishnan. She claimed that K.N.Ramakrishnan died on 17.11.1959. She also stated that Karia Nanja Gowder died in 1976 and the plaintiff was born on 06.08.1959. She state that she had filed a suit before the Sub Court, Nilgiris claiming partition and separate possession. Pending the suit, the defendants therein offered terms of settlement owing to which she permitted the said suit to be dismissed for default. She further stated that as per the terms, out of 3 schedule items, she was granted 1/3rd share and also was put in possession of the said share allotted to her. She further stated that owing to the filing of present suit by her daughter, the defendants in the suit had destroyed her crops and had thrown her out of the properties, which she she had been permitted to occupy and possess. She stated that she was also allotted a share of the properties. She undertook to pay Court fees whenever directed by the Court.
12. On the basis of the above pleadings, the learned District Munsif, Cunnoor framed following issues for trial:
1) Whether the plaintiff is entitled to partition and separate possession?
2) Whether the plaintiff is entitled to a share as legal https://www.mhc.tn.gov.in/judis 11 heir in the suit properties?
3) Whether till partition is granted, the plaintiff is entitled to mense profits?
4) to what other reliefs the plaintiff is entitled to?
An additional issue was also framed namely;
5) Whether the order of the Tahsildar, Coonoor dated 25.07.1997 is legally valid?
13. During the course of the arguments, the plaintiff examined herself as P.W.1 and the 11th defendant examined himself as D.W.1. The 12th defendant examined herself as D.W.2. The plaintiff marked Exs.A.1 to A.10. Her birth certificate was marked as Ex.A.1 and the death certificate was Ex.A.2; the legalheirship certificate was marked as Ex.A.3. On the side of the defendants, Exs.B.1 to B.11 were marked. Exs. B.2 to B.4 were land tax receipts, Ex.B.5 and Ex.B.6 were copies of Chitta and Ex.B.9 was also copy of an order of the Panchayat in Kodamali. Ex.B.11 was a copy of the Chitta.
14. On the basis of pleadings, oral and documentary evidence, the learned District Munsif found as a fact that the plaintiff was infact a legal heir of the family and based that findings on Ex.A.3 / legal heir https://www.mhc.tn.gov.in/judis 12 certificate and also on death certificate of the plaintiff's father K.N.Ramakrishnan. It was also found that the earlier suit filed by the mother / 12th defendant would not be a bar for the plaintiff to seek partition and separate possession in her independent capacity. Holding as above, the suit was decreed.
A.S.No.23 of 2004 (Sub Court, Nilgiris at Udhagamandalam):
15. As stated aforementioned, the Appeal Suit was filed by the defendants who were aggrieved by the judgment of the Trial Court granting decree and separate possession.
16. The First Appellate Court, reappraised the evidence on record and held that the earlier suit filed by the 12th defendant / mother of the plaintiff in O.S.No.165 of 1976 was actually abandoned by the said mother and therefore this entitled the plaintiff to file a fresh suit for partition and separate possession. It was also found that since there has been encumbrances made over the suit properties, the suit for partition would not lie unless the plaintiff had filed necessary reliefs to set aside such encumbrances and more importantly had sought the relief of declaration of title and thereby sought the relief of partition and separate possession.
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17. The First Appellate Court also found fault that several of the purchasers had not been made parties to the suit and therefore stated that suit is barred for non-joinder of necessary parties. Holding as above, the Appeal suit was allowed and thereby the decree granted by the trial Court in O.S.No.125/1985 was set aside. S.A.No.813 of 2009;
18. This necessitated the plaintiff to file the present Second appeal. As stated the Second Appeal had been admitted on the following substantial questions of law;
"(i) Whether the First Appellate Court below is correct in reversing the judgment and decree passed by the trial Court on the ground of non-joinder of parties?
(ii) Whether the First Appellate Court is correct in finding that the appellant / plaintiff could have filed the suit for declaration and recovery of possession, instead of the suit for partition and separate possession.
(iii) Whether the First Appellate Court is right in reversing the judgment and decree passed by the trial Court and dismissing the suit on the ground of https://www.mhc.tn.gov.in/judis 14 relinquishment of right by the mother of the appellant / plaintiff in the absence of any supporting documents?"
19. Heard arguments advanced on by Mr.A.R.L.Sundaresan, learned Senior counsel for the appellant and Mr.R.Krishna Prasad, learned counsel for the 2, 4 to 14 respondents.
20. It must be stated that the first and third respondents have died but their legal heirs are already on record. A perusal of the cause title of the Second Appeal would reveal very alarming picture. It would show that there are as many as 66 respondents. Pending the Second Appeal 3 further respondents have been impleaded which brought up the number to 69 respondents, out of said 69 respondents, R.1 to R.14 were the family members of the Karia Nanja Gowder. In effect the actual sharers to whom the properties would be allotted if at all partition is granted or would be put to such advantage if partition is negatived. The other respondents, the purchasers of the properties. Names have been printed in the cause list which would indicate that notices had been served but they had taken a conscious decision not to appear before this Court.
21. The Second appeal has been pending from the year 2009 https://www.mhc.tn.gov.in/judis 15 onwards and there is no reason as to why they did not participate in the present proceedings. The initial arguments, surrounded whether the Court can proceed further hearing the appeal in the absence of the counsels. It had been pointed out by the learned Senior counsel for the appellant that the suit had been laid for partition and separate possession to determine the share of the plaintiff and of any other defendant who had paid Court fees in accordance with Section 37(3) of the Court Fees and Suits Valuation Act. If they are purchasers to the property, then, they can very well join in the final decree applications under Order XX Rule 18 CPC and seek equity to be allotted, the properties purchased by them while actually dividing and demarcating the properties to themselves. This would naturally imply that even though they have not appeared before this Court, an obligation would be placed on the trial Court, to issue notices to all the parties at the time of final decree applications if at all filed by any one of the parties.
22. The first substantial question of law is with respect to non joinder of necessary parties and this would be continuation of the statements made above in the judgment. There are substantial number of respondents added and thereafter 3 respondents had also been added during the pendency of the Second Appeal. Order I Rule 9 https://www.mhc.tn.gov.in/judis 16 of CPC is as follows;
“9.Mis-joinder and non-joinder:- No suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
[Provided that nothing in this rule shall apply to non- joinder of a necessary party.]”
23. It provides that misjoinder of parties, i.e., parties who are not directly interested in the issues raised in the suit but joined as parties, may not be fatal to the decision to be taken in the suit. But if parties who are proper and necessary parties are not joined as defendants, then arises a possibility that the suit will be defeated owing to such non joinder.
24. This provision, has to be read in conjunction with as to who are necessary parties to a suit. At the same time, Order I Rule 13 also provides that the issue of non-joinder should be taken at the earliest possible opportunity at the time when the issues are settled.
25. In the instant case, the issues which had been framed for https://www.mhc.tn.gov.in/judis 17 consideration were whether the plaintiff, as a legal heir can seek partition, whether the plaintiff was actually a legal heir and whether the plaintiff was entitled to a share in the properties which issue would be a fallout of the decision taken in the first issue that if she is a legal heir then she would be entitled to relief of partition.
26. The 3rd issue which was framed was whether till such partition is granted, whether the plaintiff would be entitled to mesne profits and again that would lead the Court to enter into a discussion on the right of the plaintiff to seek partition and separate possession.
27. Additional issue was also framed and that was with respect to ancillary proceedings by the Revenue Authorities on 25.07.1997. Independently, the respondents had filed a writ petition and a Single Judge of this Court had directed the parties to go back to the Civil Court and claim reliefs necessitating institution of the partition suit.
28. The issue of non-joinder was never put up. It was nowhere raised during the course of the trial. The Provision of law is quite clear, that the issue of non joinder shall be taken when issues are settled or before the settlement of issues and subsequently if it is taken but if https://www.mhc.tn.gov.in/judis 18 such objections are raised then it shall be deemed to have been waived.
29. Mr.Krishna Prasad, learned counsel would draw to the notice of this Court a judgment of the Division Bench of this Court reported in 100 LW 486 in the case of Ramachandra Pillai Vs. Valliammal. In that particular case one of the co-sharer Nagarathinam, had left behind two daughters and her two daughters were not joined in the suit for partition. Non joinder of those two daughters was called upon to be examined by the Division Bench. However, the discussion on Order I Rule 9 was as follows;
“7. Though O.I, R.9 of the Code of Civil Procedure provides that no suit shall be defeated by reason of mis- joinder or non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of parties actually before it, there is a proviso which says that nothing in that rule will apply to non-joinder of necessary parties. In a suit for general partition, there could be no doubt that all the shares are necessary parties as mentioned above. Apart from this, the main part of R.9 is only an enabling provision and the Court shall deal with each case with reference to the particular facts in that case. It is in that context, the decision of the Supreme Court in Kankarathnammal Vs. Loganatha, is relevant In that case, https://www.mhc.tn.gov.in/judis 19 also , the plaintiff filed a suit for declaration and possession on the ground that the properties belonged to her mother and on her death she, as the sole heir, was entitled to the entirety of the properties.”
30. In the instant case, all the legal heirs of Karia Nanja Gowder had been impleaded. The sons had been impleaded and on their death, their legal representatives had been impleaded as defendants. Some of the purchasers were also impleaded. But the purchasers are independent persons who cannot claim to be categorized as co- sharers; They can claim a share in the property or equity, not on the basis of their birth or as a right. The concept of equity would arise to purchase of the property and the Court, while actually dividing the properties into metes and bounds ensures equity, since, they had also paid consideration for such purchase.
31. In effect, even though, they purchased the properties, the Court to that extent examines allotment, after division of metes and bounds the properties purchased by them if it can be accommodated. Otherwise, the normal right which the vendee will have against the vendor, would be a right to enforce the indemnity which the vendor had held out at the time of the sale transaction. That would imply an https://www.mhc.tn.gov.in/judis 20 independent action on the basis of the sale deed executed by the vendor, if the vendor held out that a proper and valid title would be passed to to the purchasers and on failure undertook to indemnify the purchasers.
32. I would handover that privilege of applying equity to the trial Court that whenever any final decree application is filed to issue notice to all the purchasers and at the time, when Commissioner is appointed, to include the warrant to the Commissioner to examine whether the properties already purchased could be allotted to those purchasers.
33. I would therefore interfere with the judgment of the First Appellate Court on the first substantial question of law and answer the first substantial question of law that the First Appellate Court is not correct in non-suiting the plaintiff on the issue of non-joinder of necessary parties.
34. The second substantial question of law is an extension of the first substantial question of law which relates to whether the suit for declaration and recovery of possession should have been filed. https://www.mhc.tn.gov.in/judis 21
35. The fact that the plaintiff had been recognized as a daughter should be given credence. This substantial question of law is an extension of the first issue before the trial Court which infact tested whether the plaintiff was entitled to a share as a member of the family. That issue was answered in favour of the appellant herein. Once that issue is answered, then as member of the family, she is entitled to seek partition and separate possession. Subsequent sale deeds do not create a cloud to claim a right of partition and separate possession. It might come in the way of actual apportionment of properties and allotment of properties but not in deciding whether she is entitled for a share in the properties. A preliminary decree only determines that particular share to each one of the co-sharers.
36. I would therefore state that declaration of title is not required in the facts of this particular case and therefore answer the substantial question of law in the aforesaid manner.
37. The third substantial question of law is with respect to the relinquishment which was stated to have been extended by the mother of the appellant / 15th respondent / 12th defendant. This issue was examined because the said 15th respondent had earlier filed https://www.mhc.tn.gov.in/judis 22 O.S.No.165 of 1976. The learned First Appellate Judge had unfortunately interpreted dismissal of the said suit as an abandonment of a right which had accrued by birth to the appellant and by marriage to the 15th respondent. Even if some properties had been allotted, it could only mean that there was an unequal partition. The plaintiff herein can never be bound by a suit filed by her mother even though died on her behalf. In the panchayat, 1/3rd share in 3 specific items was allotted to the mother / 15th respondent / 12th defendant but in her written statement she stated that owing to the institution of the present suit, she was thrown out of the said properties crops which she had grown were destroyed and her possession was taken back by the other two brothers.
38. I hold dismissal for non-prosecution of O.S.No.165/1976, which suit was instituted by 15th respondent / 12th defendant would not be and cannot be a ground to non suit present appellant / plaintiff. I would answer the third substantial question of law that the right of the plaintiff which is a right by birth to claim a share cannot be abandoned and she has every right to claim such share to which she is entitled to in the properties, as a member of the family and being born in the family as daughter of K.N.Ramakrishnan, the third son of Karia Nanja https://www.mhc.tn.gov.in/judis 23 Gowder. The said substantial question of law is answered in the aforesaid manner.
39. For the afore said reasons, I would set aside the judgment of the First Appellate Court in Appeal Suit No.23 of 2004 dated 23.11.2005.
40. In the result,
(i) the Second Appeal stands allowed;
(ii) the judgment and decree of the Sub Ordinate Judge, Niligiris, Uthagamandalam in A.S.No.23 of 2004 dated 23.11.2005 is set aside;
(iii) the judgment and decree in O.S.No.125 of 1985 dated 31.01.2003 on the file of District Munsiff, Coonoor stands restored and confirmed.
26.07.2022 Index:Yes/No Internet:Yes/No mrm https://www.mhc.tn.gov.in/judis 24 C.V.KARTHIKEYAN,J.
mrm To
1.The Sub Ordinate Judge, Nilgiris, Uthagamandalam.
2.The District Munsif, Coonoor.
3.The Section Officer, VR Section, Madras High Court. S.A.No.813 of 2009
26.07.2022 https://www.mhc.tn.gov.in/judis