Madras High Court
Ramasamy vs A.Kandasamy on 23 November, 2018
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.11.2018
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.No.162 of 2012
and C.M.P.No.I of 2012
1.Ramasamy
2.Bakkiyammal .. Appellants
Vs.
1.A.Kandasamy
2.S.Sakunthala
3.R.Narmadha
4.S.Karthikeyan
5.Saraswathi
6.Minor Sudha
7.Minor Karthi
8.Pavayee
9.Pavayee
10.Jayalakshmi
11.Tamilselvi .. Respondents
PRAYER: Second Appeal is filed under Section 100 of C.P.C against the
judgment and decree of the Subordinate Judge's Court at Tiruchengode,
dated 28.02.2011 in A.S.No.97 of 2008 reversing the judgment and decree of
the District Munsif Court at Tiruchengode, dated 13.08.2008 in O.S.No.2 of
1995.
For Appellants : Mr.P.Valliappan
For Respondents : No appearance
http://www.judis.nic.in
2
JUDGMENT
This second appeal has been filed against the judgment and decree dated 28.02.2011 made in A.S.No.97 of 2008 on the file of the Subordinate Judge's Court, Tiruchengode, reversing the judgment and decree in O.S.No.2 of 1995 on the file of the District Munsif Court, Tiruchengode dated 13.08.2008.
2 The brief facts of the plaintiff is as follows:
The suit was originally filed for a partition and separate possession to divide the suit property into four equal shares and to allot to 3 such shares to the plaintiff. It is the case of the plaintiff that the suit property originally belonged to his great grand father viz., Karuppanna Gounder. The said Karuppanna Gounder had two sons namely Karuppanna Gounder and Arumuga Gounder and after the death of the plaintiff’s great grand father his two sons become entitled to a share in the suit property. The Plaintiff’s grand father Karuppanna Gounder had two sons by name Karuppa Gounder and sengoda Goundar. After the death of the plaintiff’s grand father, the plaintiff’s father and his brother became entitled to ¼th shares in the suit property. The plaintiffs father Karuppa Gounder purchased the properties from Arumuga Gounder in respect of entire shares in the suit property. Now, the plaintiff’s father Karuppanna Gounder had 3/4th share totally in the http://www.judis.nic.in 3 schedule property by ancestrally and by purchase. Sengoda Gounder had one son by name Karuppanan and he died in the year 1999, leaving his wife Saraswathy and daughter Sudha and son Karthi. The first defendant is plaintiff’s uncle and defendents 2 to 4 are the legal heirs of the first defendant's deceased son. The defendants 1 to 4 are entitled to ¼th share in the suit property. There were no partition by meats and bounds but for only convenient sake, both the families are cultivating lands according to their shares. The defendants 1 to 4 executed a sale deed dated 9.11.1994 in respect of the land to an extent of 87 cents in favour of the defendants 5 and 6. The defendants 1 to 4 have no right to execute the sale deed in respect of more than ¼th shares in the suit property in favour of the defendants 5 and 6 and their wife. Hence, the suit for partition.
3 The defendants 1 and 2 remained ex-parte. The defendants 3 and 4 had not filed any written statement, whereas, the subsequent purchasers the defendants 5 and 6 filed a written statement contending that they purchased property with the specific boundaries from the Sengoda Gounder and others for valid consideration and where put in possession of the properties. There was a partition already effected among the defendants to the defendants 1 to 4, hence, the defendants 5 and 6 have purchased the property and where put in possession and enjoyment of the http://www.judis.nic.in 4 properties. There is no cause of action for the suit and hence, resisted the suit.
4 The trial Court decreed the suit for partition. However, the appellate Court held that the plaintiffs are entitled to the partition but however held that denied the partition mainly on the ground that of partial partition as against which the present second appeal has been filed.
5 The following substantial questions of law were framed at the time of admitting the appeal.
“1.Whether the lower appellate Court is correct in law in non-suiting the appellants despite finding that the appellants are entitled to a share over the suit properties.
2.When the issue whether the suit is bad or partial partition was not raised in the written statement and no issue was framed by the trial court, is the lower appellate court is correct in law in dismissing the suit on the ground of being bad for partial partition.
3.Whether the lower appellate court is correct in law in holding that the suit is bad for partial partition, especially when a suit for partial partition can be maintained against alienees and in any event the rule that suit for partial partition is not without exceptions?” http://www.judis.nic.in 5 6 The learned counsel for the appellants submitted that there was no defence taken by the defendants as regards partial partition in the written statement. Further, there was no issues framed by the trial Court with regard to the partial partition. The learned Appellate Court admitting the shares of the plaintiffs namely the appellant herein non suited them on the ground of partial partition, which was not taken as a defence by the respondents. Therefore, it is the contention of the learned counsel for the appellants when the facts clearly established that the plaintiffs are entitled for partition, the first appellate Court ought not to have non suited the plaintiffs on the ground of partial partition, which was not at all raised neither in the written statement nor in the evidence. It is further contention of the learned counsel for the appellants that such plea of partial partition cannot be raised by the alienees namely the subsequent purchases. In support of his submission, he has also placed the reliance of the judgment in AIR 1955 Mysore 88, 1948 (2) MLJ 181, 1991 (1) LW 527 and 2014 (2) CTC 706 submitted with the judgment of the Court having interfered.
7 None represented the respondents despite their name appeared in the cause list. Even in the last hearing, this case has been specifically adjourned only in order to give opportunity to the respondents http://www.judis.nic.in 6 to contest the appeal and today also there is no representation on behalf of the respondents. Therefore, this Court is of the view that the matter has to be considered on merits.
8 It is not in dispute that the suit property is the ancestral property. Originally a portion of the property, was purchased by the father of the plaintiffs. The defendants 1 to 4 who are the members of the coparcenery have not contested the suit. In view of the purchase made by the father the plaintiffs were entitled for 3/4th share in the suit property, which has not been disputed by the original coparceners. The defendants 5 and 6 are only the subsequent alienees, who have purchased the property to an extent of 87 cents from the defendants 1 to 4 with specific boundaries. There is a contention that earlier there was a partition in the family but such contention has not been established. The trial Court as well as the first appellate Court considered the entire materials and found that the contention of the defendants has not been established. It is further to be noted that the defendants 5 and 6 filed a suit in O.S.No.222 of 1998 for declaration of the title on the basis of the sale deed executed in their favour by the defendants 1 to 4. The above suit was also jointly tried along with present suit. However, the suit filed by the defendants 5 and 6 was http://www.judis.nic.in 7 dismissed and the appeal was also dismissed. No further appeal has been filed and it reached finality, therefore, the first appellate Court in the judgment has categorically held that the plaintiff is certainly entitled to partition of the suit property. The relevant portion of the judgment of first Appellate Court is as follows:-
“24.Thus the plaintiff had proved that no partition of the suit property was effected and as such he is entitled to get the relief of partition. It was argued on behalf of the defendants that apart from the suit property there are other properties that belong to the family of the plaintiff and 1st defendant but they are not included in the suit filed by the plaintiff and as such the suit is bad for partial partition. On careful perusal of the Lower Court Judgment it had not considered the contentions raised by the defendants. All the properties belonged to the joint family to be included in the suit and the plaintiff is discentitled to claim partition of one of the joint family property though it was said to be purchased by the defendants to a larger extent than the 1st defendant was legally entitled. Though P.W.1 had stated that he had filed a separate suit that was pending for trial with regard to other joint family property the same was not proved by any documentary evidence. PW.1 had categorically admitted during his cross examination that runs as follows:-
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9 Both the trial Court and the first appellate Court considered
the evidence and documents and come to such findings. Having held that the plaintiffs are entitled to partition, the first appellate Court non suited them only on the ground that there was a partial partition. It is curious to note that such plea of partial partition was neither raised in the written statement nor even stated in their evidence. The first appellate Court decided the above point only on the basis of mere submission of the learned counsel in the appeal stage. Such approach of the first appellate Court, in my view, is against the law. It is to be noted that the defendants 5 and 6 namely the respondents 5 and 6 are only a transferee from the co-owners and at the most they will step into shoes of their vendors. The right to allotment of the specific properties will arise only at the time of passing a final decree and not before. The subsequent purchaser or alienee also http://www.judis.nic.in 9 cannot make such plea of partial partition against the member of the family. In this regard, it is useful to refer the judgment of this Court in Nalluri Subbarayudu Vs. Ranpati Ramanaiah and Ors. reported in 1948 (2) MLJ 181. In that case, this Court after referring to the various judicial pronouncement including Division Bench decision rendered in Iburamsa Rowthan V. Thiruvenkatasami Naick in I.L.R. 34 Mad. 269 has held as follows:-
“The third class of cases arises between a coparcener and a stanger, who has purchased a portion of the family property from one of the coparceners. It has been held with regard to such actions that it is competent for any coparcener to sue for particion of his own share in the alienated property, the principle being that the connection of the stranger with any property belonging to the family may be severed. There is a volume of authority in support of this position.” 10 From the above dictim it is well settled that any third party who purchased the portion of the property from one of the coparceners pending suit for partition among the members and family, despite the property purchased by the alienee is very well maintainable, such suit cannot be non suited on the ground of partial partition. The case in Innsaimuthu and 3 others V. Kandasami and 6 others reported in 1999 (1) LW 527 reiterated the following:
http://www.judis.nic.in 10 “13.In a subsequent recent judgment reported in (1977) 1 MLJ 7 (Short Notes) (M.S.P.Meyyappa Chettiar V. M.Meyappa chettiar) the question arose as to whether the alienee of a certain item of the joint family property was entitled as of right to file a suit for partition. The Division Bench after examining the issue in detail held that in a joint Hindu family every member had no doubt undivided share over the entirely of the joint family property, but it was equally well established and recognised that even unpredictable and undivided share of a member of the Hindu family can be a subject matter of the sale and the alienee in those circumstances has the right to seek for possession of that undivided share from the other members of the joint family. It was further held that though the general and accepted principle of law was that a suit for partial partition will not lie, yet there were exceptions to that Rule and one such exception was in the case of alienee who files a suit for partial partition from one of the members of the family. Such a suit was maintainable even though it had the characteristics of partial partition. Therefore, the contention of the learned senior counsel that the alienee in the present case could not have filed the suit for partition and that he ought to have pursued his remedy only by way of seeking equity for allotment of his share in the earlier suit for partition between the coparceners cannot be sustained. As far as this Court is concerned, the entitlement of alienee to sue a coparcener separately for division of the share purchased by him has been http://www.judis.nic.in 11 held to be perfectly valid in law and as such the contention raised by the learned counsel for the appellants cannot be sustained.” 11 In the Judgment in Karuppiah and another V. C.Muniyappan and others reported in 2014 (2) CTC 706, this Court has held as follows:-
“21.So far as the objection to partial partition is concerned, the said objection can be raised only by a sharer and the Seventh Defendant not being the co-owner, it is not open to him to take the plea. The present Suit is one between the co-owner and a alienee and not really between the members of the family. Therefore, the co-owner is entitled to recover his share of the property in the Schedule Item and an alienee cannot contend that the Suit is barred for partial partition when that right is given only to the members of the family” 12 Having considered the above judgment and the facts of the present appeal, the defendants 5 and 6 who are the strangers of the family, who are the alienees, cannot resist the suit filed by the members of the family on the ground that all other properties have not been included in the suit for partition. It is to be noted that such plea has not been raised as a defence or in the evidence but only in an oral submissions at the time of http://www.judis.nic.in 12 hearing the appeal which was taken into consideration by the Appellate Court. Such approach by the first appellate Court is against the law and without application of mind hence I am of the view that the alienee cannot resist the suit on the ground of partial partition.
13 In view of the same, the substantial questions of law framed are answered in favour of the appellants accordingly the judgment of the first appellate Court is set aside and the judgment of the Trial Court is restored. The Second Appeal is allowed. No costs. Consequently, the connected miscellaneous petition is also closed.
23.11.2018 Index : Yes/No Internet:Yes/No rpl To
1.The Subordinate Judge's Court, Tiruchengode
2.The District Munsif Court, Tiruchengode.
http://www.judis.nic.in 13 N.SATHISH KUMAR,J rpl S.A.No.162 of 2012 and M.P.No.1 of 2012 23.11.2018 http://www.judis.nic.in