Madras High Court
Karuppiah vs C. Muniyappan on 14 March, 2014
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14/3/2014 CORAM THE HONOURABLE Mrs.JUSTICE PUSHPA SATHYANARAYANA S.A.(MD) No.683 of 2011 in A.S.No.41 of 2010 in O.S.161 of 2007 1. Karuppiah 2. Anguchamy ...Appellants Vs 1. C. Muniyappan 2. C. Ganesan 3. Sellamuthu 4. Kalimuthu 5. Kulanthairani 6. Katturaja alias Thangam 7. C. Ponnudurai 8. Rajathi 9. Maharajan 10. Theivam ...Respondents (R.R.8 to 10 were impleaded as LRs of the deceased 7th respondent vide order dated 24/1/2014 by SVJ in M.P.No.1 of 2014). and S.A.(MD) No.---- of 2011 in A.S.No.42 of 2010 in O.S.161 of 2007 1. Karuppiah 2. Anguchamy ...Appellants Vs 1. C. Muniyappan 2. C. Ganesan 3. Sellamuthu 4. Kalimuthu 5. Kulanthairani 6. Katturaja @ Thangam 7. C. Ponnudurai (died) 8. Rajathi 9. Maharajan 10. Theivam ...Respondents (R.R.8 to 10 were impleaded as LRs of the deceased 7th respondent vide order dated 24/1/2014 by SVJ in M.P.No.1 of 2014). Prayer Petition filed under Section 10 of the Code of Civil Procedure to set aside the judgment and decree dated 15/11/2010 in A.S.Nos.41 and 42 of 2010 on the file of the Subordinate Judge, Devakottai, reversing the judgment and decree dated 28/8/2009 in O.S.No.161 of 2007 on the file of the District Munsif, Sivagangai. !For Appellants ... Mr.L.Madhusudhanan ^For Respondents ... Mr.M.Rajarajan for R.1 Mr.S.Krishnan for R.R.2 to 6 and 8 to 10. - - - - - :JUDGMENT
The appeal is filed by the seventh and eighth defendants against the decree in a suit for partition in O.S.No.161 of 2007 on the file of the District Munsif, Sivagangai, filed by the plaintiff for
(a). claiming division of 1/7th share in the suit property
(b). declaring the sale deed dated 20/7/2000 executed by the sixth defendant in favour of the seventh defendant as void and not binding on the plaintiff
(c). for a mandatory injunction directing the seventh and eighth defendants to demolish the house constructed in the suit properties
(d). deliver vacant possession of the suit properties and
(e). for permanent injunction restraining the seventh and eighth defendants from in any manner alienating and encumbering any part of the suit property.
2. By consent of both the counsels, date had been fixed earlier for final hearing and accordingly, it is taken up for hearing today.
3. For the sake of convenience, the parties will be referred to their status in the suit.
4. The case of the plaintiff is that the plaintiff and the defendants 1 to 6 are brothers and sisters born to one Chinnathambi Pillai. The suit property is an extent of 11.80 acres in S.No.149 in Puliyankulam Village, Sivagangai. The property was originally purchased by the father of the plaintiff and the defendants 1 to 6, out of his own earning under the sale deed dated 14/2/1944. The said Chinnathambi Pillai had been in possession and enjoyment of the property till he died in the year 1981 and after his demise, the plaintiff and the brothers and sisters became the joint owners and have been in joint possession of the same.
5. It is further stated that when the plaintiff was appointed as Executive Officer in HR & CE Department, the suit property was given as a security and the same was registered as Document No.1274/1967. According to the plaintiff, the patta, chitta and adangal and other revenue records all stood in the name of the father, who was paying the kist and taxes regularly. After the death of Chinnathambi Pillai, on 7/6/1981, it is alleged by the plaintiff that the sixth defendant, fraudulently got the patta transferred in his name without notice to the other legal heirs. On the strength of the patta issued in his name, the sixth defendant sold 5.90 acres out of 11.80 acres to the seventh defendant by way of a registered sale deed dated 20/7/2000. The plaintiff had no knowledge about the said sale. The seventh defendant, who is the purchaser from the sixth defendant had occupied the eastern side of the property as the property was never divided.
6. On coming to know of the sale, the plaintiff issued notices stating that the sixth defendant had only 1/7th share in the suit property and that the sale by him in favour of the seventh defendant is not binding on the other co- owners. The plaintiff also took steps to cancel the patta granted in the name of the seventh defendant and the Revenue Divisional Officer by an order dated 13/7/2014, cancelled the patta issued in the name of the seventh defendant and directed the Tahsildar to issue fresh patta after inspecting the spot.
7. However, on an appeal to the District Revenue Officer, the District Revenue Officer, by his order dated 14/10/2006, directed the issue of joint patta in the name of the joint owners viz., the legal heirs of Chinnathambi Pillai. The eighth defendant, who is the son-in-law of the seventh defendant is trying to put up construction in a portion of the suit property on the north eastern side to an extent of 300 sq.feet. As the sixth defendant who sold the property more than what he is entitled to and the eighth defendant who is trying to put up a construction in the suit property, the plaintiff filed the suit for the above said reliefs.
8. The defendants 1 to 6 were set ex parte in the suit. The seventh and eighth defendants filed the written statement resisting the suit on the ground that the sixth defendant had a patta in his name and based on the same, the seventh defendant, purchased the property on 20/7/2000 for valid consideration and claimed that they have been in possession of the property.
9. The defendants further contended that the cancellation of the patta in his name and the order of District Revenue Officer, on 14/10/2006 are not to his knowledge. After the purchase from the sixth defendant, the seventh and eighth defendants claimed to have put up cattle shed and tractor shed and raised barbed wire fencing, the defendants claimed right to the property as they have purchased the same for valid consideration.
10. Before the trial Court, the plaintiff had filed documents Exs.A. 1 to A.13 and the defendants had filed the documents Exs.B.1 to B.18. The first plaintiff besides examining himself as P.W.1 also had examined P.Ws.2 to 5. On the side of the defendants, D.W.1 to D.W.4 had been examined.
11. The trial Court, after elaborate consideration of the pleadings and evidence held that the plaintiff was entitled to 1/7th share in the eastern portion of the suit property. In so far as the declaration of the sale deed dated 20/7/2000 is concerned, the trial Court, negatived the claim of the plaintiff. On the relief of mandatory injunction, the trial Court directed the defendants 7 and 8 to remove the encroachments and superstructures on the eastern portion of the suit property and also decreed the relief of permanent injunction, restraining the defendants 7 and 8 from in any manner alienating or encumbering the eastern portion of the suit property. Thus, the suit was partly decreed and the preliminary decree for partition in favour of the plaintiff was passed with regard to the eastern portion of the suit property except the portion covered under Ex.B.4. Aggrieved by the said decree granted by the trial Court, the plaintiff preferred an appeal in A.S.No.42 of 2010 and the defendants 7 and 8 preferred A.S.No.41 of 2010 on the file of the Subordinate Judge, Devakottai.
12. The Appellate Court, after hearing the contentions of the rival parties, allowed the appeal filed by the plaintiff and dismissed the appeal filed by the defendants 7 and 8 as observed in paragraph 10 of its judgment as follows:-
"Further the sixth defendant is entitled only to a share in the suit property. He is not entitled to sell more than his share in it. Without any partition, he cannot claim any share in any portion of the suit property. Therefore, the sale deed Ex.B.4 dated 20/7/2000 executed by the sixth defendant will not be valid. The defendants 7 and 8 cannot claim any portion of the property without actual partition of the suit property. His remedy is to file the suit for partition and ask for equitable relief so as to allot the alienated portion of the property to have of the sixth defendant, if possible, the seventh defendant has not filed any such suit and has not prayed for any such relief in the suit. But, the trial Court is therefore, wrong in excluding one portion of the suit property and restricting the relief of partition to only one portion of the suit property. Hence this Court is inclined to rightly interfere with the lower Court decree and judgment and set aside the same and hence the plaintiff will be entitled to the relief of partition of his share in the whole of the suit property and also is entitled to get all the reliefs asked for in the plaint."
13. Aggrieved by the same, the seventh and eighth defendants have preferred the above Second Appeal and the appeal was admitted on 16/9/2011, on the following substantial questions of law:
"1. Whether the relief of mandatory injunction is maintainable when the same is hit by Article 113 of Limitation Act?
2. Whether the Courts below right in law in granting the relief of partition when it is partial partition and admittedly there was already a partition and mutation in the revenue records ?
3. Whether the Court below applied the Principles of Latches and Acquiescence rightly ?
4. Whether the relief of declaration of Ex.A7 as null void is hit by Article 13 of the limitation Act?
5. Whether the relief of mandatory injunction is sustainable in law when it is barred by limitation and without referring exact measurement of construction in question and without sought for relief of declaration ?
6. Whether the suit relief is maintainable when the other co- owners/defendants 1 to 6 has not come forward to file a suit and remind ex-party and among them 5th defendant is the attester of the Ex.A7 ?"
14. The learned counsel appearing for the appellants also had filed M.P.No.3 of 2012 under Order 41 Rule 27 to receive four additional documents as Exs.B.22 to B.25.
a. The first document is the original sale deed dated 14/2/1944 and the copy of which is marked in the suit as Ex.A.2.
b. The second document is sought to be marked is the copy of the plaint in O.S.No.76 of 2009 on the file of the Sub-Court, Sivaganga. The plaintiff in that suit is the son of the first respondent which seems to be a partition suit not concerning the suit property.
c. The third document is a copy of the plaint in O.S.No.76 of 2011 on the file of the Sub-Court, Sivaganga and the first respondent herein is the plaintiff therein and the suit is for recovery of possession against the State of Tamil Nadu and two others.
d. The fourth document is the plaint copy in O.S.No.250 of 2010 between one C.Seeman Muniyappan and Chellamuthu and seven others.
15. The counsel for the respondents stated that the above mentioned suits are all withdrawn. However, they are not relevant to the present appeal. The only document relevant is the parent document viz., original sale deed (certified copy of which is marked as Ex.A2) which is received here and marked as Ex.B.22.
16. In view of the above, M.P.(MD) No.3 of 2012 is partly allowed.
17. It is admitted that the father of the plaintiff Chinnathambi Pillai had six children and that he is the owner of the suit property having purchased the same in year 1944 under Ex.A.2. As the said Chinnathambi Pillai died in the year 1981 after coming into force of the Hindu Succession Act, the property devolves equally on all the seven children. While so, the sixth defendant, who managed to get the patta transferred in his individual name, on the strength of which had sold the property to the seventh defendant more extent than what he is entitled to. Admittedly, the suit property is not divided and it is in joint possession of the plaintiff and the defendants 1 to 6. While so, the sale by the sixth defendant who has got only 1/7th share in the property could not have sold within any definite boundaries. The seventh defendant who has purchased the undivided share would at the most be entitled to 1/7th share of his vendor viz., sixth defendant. Having purchased the undivided share, the only remedy open to the seventh defendant is to sue for partition and pray for allotment of the portion purchased by him to his vendor thereby safeguard his interest that too only to an extent of 1/7th share. The excess extent purchased by him from his vendor for which he has got no marketable title, the seventh defendant has to work out his remedies only with his vendor.
18. On the question of acquiescence, the said principle will apply where a person either by words or conduct has intimated that he consents to an act which has been done and that he will not oppose the same although it could not have been lawfully done without his consent. Further, his conduct should induce the others to do that act. Therefore, it can be seen from the above doctrine that if a party having an interest to prevent an act being done had full notice and knowledge of the act being done and acquiesces in it giving an implicit consent, he cannot be said to have a right to challenge the act.
19. In the present case, it is admitted by the defendants that the plaintiff was not living in the village where the suit property is situate. Therefore, the question of acquiescence does not arise as the construction put up by the seventh defendant was not within the knowledge of the plaintiff and he could not have objected to the same when he is not living in the same village.
20. Besides the seventh defendant had put up only a cattle shed, tractor shed and barbed wire fencing which are semi permanent structures which would not take a considerably longer time to complete the act. In view of the discussions above, the question of law is decided against the appellant.
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.
22. In this regard, it is relevant to quote the decision reported in 1998 (2) Law Weekly - 414, BALAKRISHNA UDAYAR AND 3 OTHERS Vs. CHELLAMMAL AND 9 OTHERS, wherein this Court has decided the question of partial partition.
"8. The only question to be decided is, whether the suit is bad for partial partition.
9. In the decision reported in (1969) 2 SCWR 414 ( Mst. Hateshar Kuer & others v. Sakaldeo Singh & others ), Their Lordships held that, "The rule requiring inclusion of the entire joint estate in a suit for partition is not a rigid and inelastic rule which can admit of no exception. This rule aims at preventing multiplicity of legal proceedings which must result if separate suit were to be instituted in respect of fragments of joint estates. Normally speaking, it is more convenient to institute one suit for partition of all the joint properties and implead all the interested cosharers so that all questions relating to the share of the v arious co-owners and the equitable distribution and adjustment of accounts can be finally determined. But this being a rule dictated by consideration of practical convenience and equity may justifiably be ignored when, in a given case there are cogent grounds for departing from it. When an item of property is not admitted by all the parties to the suit to be their joint property and it is contended by some of them that it belongs to an outsider, then a suit for partition of joint property excluding such items does not become legally incompetent because of any rule against partial partition"
(Emphasis supplied) The above decision was followed by V.R. Krishna Iyer, J., as he then was, in 1970 Kerala Law Times 1031 (Parameswara Menon v. Sachidananda Menon). In para 5, the learned Judge has reiterated the decision rendered by Mukherjea, J. In AIR 1923 Calcutta 501 (Rajendra Kumar v. Brojendra Kumar). The observation of the learned Judge (of the Calcutta High Court) reads thus:-
"The established rule may accordingly be taken to be that a suit for partition should include all the lands of the co-tenancy, and if it does not, any party interested may insist that the omitted land or lands be included in the suit......
Exceptions to the rule that a suit cannot lie for partition of a portion of the family property have been recognised when different portions of the family property are situated in different jurisdictions, and separate suits for separate portions have sometimes been allowed, where different rules of substantive or adjective law prevail in the different courts."
V.R. Krishna Iyer, J., in the aforesaid decision, has taken into consideration another decision of the Rajasthan High Court reported in AIR 1954 Rajasthan 269 ( Sambhudutt v. Srinarain ), wherein, Wanchoo, C.J., as he then was, had considered a similar question, and held thus: -
"The general rule of Hindu Law is that where a suit for partition is brought by a co-parcener against the other co-parceners it should embrace the whole family property. This rule is subject to certain exceptions, e.g. , where a portion of the property is not available for actual partition, or where it is held jointly by the family with a stranger, or where part of the joint property consists of land situated outside the jurisdiction of the court in which the suit for partition is brought. This principle, however, has not been applied with full force to the case of partition between co-tenants."
The learned Judge (Wanchoo, C.J.) explained the rationale of the rule in regard to joint family partitions and its inapplicability to cases of co-tenancy thus:
-
"The reason why in the case of partition between co-parceners all the property must be thrown in the hotchpot except for certain well recognised exceptions is that where a member of a joint Hindu family, who broke up the joint status, wants the joint family property to be divided, the cause of action arises at one time, and he must therefore include every item of property in the suit. Butin the case of tenants-in-common it is not necessary that the cause of action for partition of every item of the property which is held in common must arise at the same time. Therefore, it may be possible in cases of cotenants that a suit may lie for one item of property at one time and for another item at another time."
(Emphasis supplied) In the Rajasthan case, the learned Judges summed up thus: -
"It is clear, therefore, that in the case of tenants-in-common it is not essential that all the property held in common should be brought into hotchpot though it is desirable as far as possible, in order to avoid multiplicity of suits, all the property should be included in one suit. It is, however, for the Court in each case to decide whether the case is of such a mature that the plaintiff should be ordered to include the remaining property also in the suit for division, provided of course the property is within the jurisdiction of the course in case it is immovable property. But the suit, in our opinion, cannot be thrown out on the mere ground the all the property which is capable of partition was not included."
Their Lordships IV.R. Krishna Iyer, J.) also, referred to a decision of the Patna High Court reported in AIR 1963 Patna 375 ( SM.A. Samad v. Shahid Hussain), wherein a Bench of that court also dealt with a similar question and held that, "the ordinary rule that a suit for partial partition is not maintainable does not apply to the case of co-owners who hold land as tenants-in-common as distinguished from co-sharers holding land as joint tenants." In that decision, the Bench of the Patna High Court summarised the principle thus: -
"From the foregoing discussions, it appears to be well settled that -
(1) The rule that the suit for partition must cover the entire property held jointly by the parties is merely a rule of equity and convenience; (2) A suit for partition must embrace only the property to which the parties have community of interest and unity of possession;
(3) there is substantially no difference in respect of the subject-matter of a suit for partition amongst Muslim co-owners or Hindu co-owners where they hold property as tenants-in-common; and (4) A suit for partition of even one item of such property is maintainable, provided that the partition can be effected without much inconvenience to the other co-owners, In other words, in the case of tenants-in-common, whether such tenants are Mohammedans or Hindus, one of them is not obliged to sue for the partition of all the items of the property in which they are interested, inasmuch as each of them is entitled to his definite share in every item of the property, unless the partition sought for results inconvenience to the other tenants-in-common."
23. In view of the foregoing decision, the contention of the alienee, questioning the partial partition against the non-alienating co-owner is unsustainable and the question of law is answered against the appellant.
24. So far as regarding Ex.A.11 which is equivalent to Ex.B.4, the sale executed in favour of the appellant by the sixth defendant, it is not binding on the plaintiff. The appellant having purchased in excess of what his vendor is entitled to, the plaintiff need not set aside the same as it is not binding on him. The plaintiff has sought for the relief of partition of 1/7th share only and any alienation made by any co-owner is not binding on the non-alienating co- owners and it will not disturb their rights. Therefore, even on this question, it is answered against the appellant.
25. The defendants have stated in their written statement that after their purchase of the property in 2000, the seventh defendant had improved the land by constructing a tractor shed and a cattle shed and raised barbed wire fencing around the suit property. While so, when it is found that the seventh defendant is entitled to only 1/7th share that may be allotted to his vendor viz., sixth defendant if any improvement that has been made in the property either temporary or permanent, it is not binding on the plaintiffs. The seventh defendant having purchased an excess extent cannot claim equity on the ground that he has put up a structure in the property. Having purchased a portion of the property in an undivided share, the seventh defendant cannot have any claim of equity on the ground that he has improved the property and the same is also not binding on the plaintiff. It is the duty of the seventh defendant to deliver a vacant possession of the excess share in his possession in the final decree proceedings.
26. In the foregoing circumstances, it can be seen that the appeal filed by the alienee who is fighting the non-alienating co-owners cannot have any indulgence to raise objections which are open only to the joint owners or co- owners or the tenants in common.
27. In view of the discussions above, the questions of law raised by the appellant fail and the appeal is dismissed.
28. In the result, this Second Appeal is dismissed and the suit in O.S.No.161 of 2007 on the file of the District Munsif, Sivagangai, is decreed as prayed for. No costs. Consequently, the connected Miscellaneous Petition No.2 of 2012 is also dismissed.
29. Before parting with this case, a few facts have to be brought on record.
30. The appeal was admitted by The Honourable Mr.Justice M.Duraiswamy on 16/9/2011 after formulating the questions of law.
31. It was subsequently agreed by the counsels to argue the appeal finally. Accordingly, the matter came up before the Honourable Mr.Justice A.Selvam on 7/2/2012 wherein his Lordship was pleased to observe as follows:-
"At the time of hearing arguments, the first respondent/plaintiff has created contrary terms to the Court proceedings. Under the said circumstances, I am not willing to get along with the appeal. Registry is directed to post this matter before some other Judge."
32. Thereafter, the matter was listed before the Honourable Mr.Justice R.Karuppiah on 17/9/2012 and it was adjourned.
33. On 11/11/2013, written arguments of the respondents was filed and the respondents counsel was ready and the appellants counsel not ready and it was further adjourned to 13/11/2013.
34. Again, after several adjournments, it was posted before the Honourable Mrs.Justice S.Vimala before whom, a memo was filed intimating the death of the seventh respondent. Thereafter, it was adjourned.
35. On 27/1/2014, it was directed to be specifically posted for final hearing on 5/2/2014 and Vakalat of R.R.8 and 10 was filed and this Court had directed the name of Mr.S.Krishnan appearing for R.R.8 to 10 to be printed in the cause list. The Honourable Mrs.Justice S.Vimala also had tried for Mediation, but failed. However, on 5/2/2014, the Honourable Judge recused herself from hearing the appeal and thereafter, it was posted before me on 6/3/2014.
36. On 6/3/2014, all the counsels appeared and since the appeal was already directed to be posted for final hearing, the counsels appearing for the parties agreed for arguing the matter on 13/3/2014.
37. Accordingly, when the matter was listed on 13/3/2014, it was heard by me. The matter was heard in the forenoon and judgment was reserved. While so, the Registry had brought two letters dated 13/3/2014, one in English and another in Tamil signed by C.Katturaja and P.Maharaja. Katturaja is the sixth respondent in the appeal and Maharaja was impleaded as ninth respondent being one of the heirs of the deceased seventh respondent.
38. In the letter, it is stated that one S.Krishnan had filed vakalat on their behalf which fact is denied by them. It is further stated that the signatures were forged in the vakalat. It is stated that in the letter that "Though we remained ex parte in the Courts below, some fraudulent act we have been brought into seen before this Honourable Court by using the fraudulent vakalat in our names. It has serious consequences and under Section 340 r/w 190 of C.P.C., can be pressed into service at the instance of this Honourable Court. In order to highlight the reality of partition and patta as well as the genuine transaction and the present fraudulent vakalat, we are forced to place our representation before this Court." and they sought for an enquiry on the issue. On the two occasions, when the matter was listed before me, the counsels were present and no such allegations were made. Even today, it was stated that one of the signatories Katturaja was said to be present in the Court by the counsel for the appellant. If really, the signature of the said Katturaja was forged in the vakalat, he could have by all means engaged a different lawyer of his choice and represented before this Court to contend that he had not given vakalat to Advocate Mr.S.Krishnan. He has not done so. Therefore, this Court feels that there is no merit in the representation given by M/s.Katturaja and Maharaja.
mvs To
1. The Subordinate Judge, Devakottai
2. The District Munsif, Sivagangai.