Madras High Court
Sathya Bhama ... 1St vs Vasudevan on 26 September, 2024
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
S.A(MD)No.1281 of 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.09.2024
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.1281 of 2006
and
M.P(MD)No.1 of 2006
1.Sathya Bhama ... 1st Appellant/Appellant/
1st Petitioner/9th Defendant
2.Jeya
3.Kanthymathy
4.Suja
5.Sindu ... Appellants 2 to 5/Appellants/
Petitioners 2 to 5/
Lrs of the 8th defendant
Vs.
1.Vasudevan
2.Kunjamma pillai
3.Neelakandan (died)
4.Nesamony
5.Chellan
6.Thanka pillai
7.VeluKutti Asari
8.Sukumaran Nair
9.Sadasivan Nair
10.Narayanan Nair
11.Vijayamma
12.Indira
13.Sreekumari ... Respondents 1 to 13/
Respondents 1 to 7 & 9 to 14/
Plaintiff & defendants 1 to 6 &
Lrs of the 7th defendant
14.Sarojini
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S.A(MD)No.1281 of 2006
15.Rasalan
16.rajan
17.Kumar
18.Sasi ... Respondents 14 to 18/
Lrs of the deceased 3rd Respondent
(Respondents 14 to 18 are brought on record as Lrs of the
deceased third respondent vide order dated 05.02.2021
made in M.P(MD)Nos.1 to 3 of 2010 in
S.A(MD)No.1281 of 2006)
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 07.08.2006 passed
in A.S.No.128 of 2005 on the file of the Sub Court, Kuzhithurai,
confirming the judgment and decree dated 06.12.2005 passed in
I.A.No.501 of 2004 in O.S.No.27 of 1977, on the file of the
1st Additional District Munsif Court, Kuzhithurai.
For Appellant : Mr.V.Meenakshi Sundaram
For R – 1 : Mr.P.S.Ganesan
For RR 4 to 6, 14,
16 & 17 : Mrs.J.Anandhavalli
JUDGMENT
The Judgments and decrees passed in I.A.No.501 of 2004 in O.S.No.27 of 1977, on the file of the 1st Additional District Munsif Court, Kuzhithurai and in A.S.No.128 of 2005 on the file of the Sub Court, Kuzhithurai, are being challenged in the present Second Appeal. 2/16 https://www.mhc.tn.gov.in/judis S.A(MD)No.1281 of 2006
2.The first respondent herein as plaintiff instituted a suit in O.S.No.27 of 1997 on the file of the trial Court against the respondents 2 to 7, Chellappan Pillai, Lakshmi Kutti and the plaintiff for the relief of partition.
3.For the sake of convenience, the parties are referred to as, as described before the trial Court.
4.According to the plaintiff, the suit properties namely Survey Nos.2314, 2315 and 2311 of Methukumal Village formerly belonged to Pachu Pillai alias Lakshmi Pillai daughter of Parvathi Pillai of Karungavilakathu Veedu, Muthukummal Desom. The above said Lakshmi Pillai along with her children partitioned the suit properties and other properties on 24.04.1921. In the partition deed 'A' schedule properties were allotted to Kunjamma Pillai daughter of Lakshmi Pillai, the first defendant. On 07.07.1951, the said Kunjamma Pillai sold 15-1/2 cents in Survey No.2315 ie., plaint item No.1 in the suit in favour of Sivaraman Asari, son of Pappu Asari in continuation of his 3/16 https://www.mhc.tn.gov.in/judis S.A(MD)No.1281 of 2006 earlier mortgage. Lakshmi Pillai daughter of Parvathi Pillai, who got shares in the suit property gifted her share in the suit properties to her daughter Kamalakshi Amma and her son-in-law Sukumara Pillai in Document No.6547 of 1124 M.E. On 07.07.1951, the abovesaid Kamalakshmi Amma along with her husband Sukumara Pillai sold 30 cents in Survey No.2316 ie., plaint item No.2 and 12 cents in Survey No.2314 ie., plaint item No.3 to Sivathanu Asari son of Raman Asari of Parayanvila Veedu. On 21.05.1953, the said Sivathanu Asari sold his shares purchased by him in plaint item Nos.2 and 3 to Sivaraman Asari son of Pappu Asari. Thus, the said Sivaraman Asari was entitled to and was in possession of 15-/12 cents in plaint item No.1, 30 cents in plaint item No.2 and 12 cents in plaint item No.3. The said Sivaraman Asari is no more and his assets including his shares in the suit property devolved on his son Vasudevan ie., the plaintiff and on his daughters namely Lakshmi Kutti and Sathiyabhama, who are the defendants 8 and 9 in the suit. Thus, the plaintiff was entitled to and was in possession of 1/3 of the properties of Sivaraman Asari. An Oodukoor case No.1035 of Methukummal Village was taken with respect to plaint item Nos.1 and 2 under the Travancore Godukoor Proclamation of the year 1946 and an award has been passed on 31.01.1957. In the above said Godukoor award, plot No.1 measuring 17 cents and plot No.4 4/16 https://www.mhc.tn.gov.in/judis S.A(MD)No.1281 of 2006 measuring 28.5 cents in plaint item No.1 and plot No.3 measuring 19 cents and plot No.4 measuring 11.5 cents in plaint item No.2 have been allotted to Sivaraman Asari and other jointly. The common plots namely plot Nos.1 and 4 and plaint item No.1 and plot Nos.3 and 4 in plaint item No.2 were held in joint by Sivaraman Asari and others. The plaintiff is entitled to get a partition of 5-1/6 cents in the common plots of 1 and 4 and in item No.1 and 10 cents in the common plots of 3 and 4 in item No.2 as per the said award. In respect of item No.3, namely 2315 an award has been passed in case No.1034 of Methukummal Village on 31.07.1955. Under the said award, plot No.2 measuring 7.334 cents has been allotted in the name of Parvathi Pillai, Lakshmi Pillai, the predecessor-in-interest of Sivaraman Asari under whom the plaintiff and defendants 8 and 9 claimed right. In the 'A' register kept in the revenue department, Lakshmi Pillai was stated as Pattadar and her name was mentioned in the award also, even though the plaintiff and the defendants 8 and 9 obtained the right of Lakshmi Pillai. Thus, the plaintiff and the defendants 8 and 9 are the owners in possession of plot No.2 in item No.3. The plaintiff was entitled to partition of 1/3 share in plot No.2 in item No.3. Since the properties were held jointly, there was much inconvenience in enjoying the properties and therefore, the plaintiff was entitled to get his share of partition by 5/16 https://www.mhc.tn.gov.in/judis S.A(MD)No.1281 of 2006 metes and bounds. The remaining shares in the properties belong to the defendants in the suit. Hence, the plaintiff has come forward with the suit.
5.The defendants 2 to 5 filed a written statement stating that the suit for partition was not maintainable as the properties concerned were already partitioned by metes and bounds and the averments of the plaintiff were not made in good faith and even the plaintiff has no cause of action against the defendant. It is also contended that the suit was barred by res judicata by judgment and decree in O.S.No.19 of 1953 and the suit was also barred by estoppel.
6.The defendants 8 and 9 filed a written statement denying the averments made in the plaint, except paragraph Nos.1 to 11 and stated that the defendants 8 and 9 are the sisters of the plaintiff and each was entitled to 1/3 of the right of Sivaraman Asari deceased father, the eighth defendant was entitled to 5-1/6 cents in item No.1, 10 cents in item No.2 and 2.45 cents in item No.3; the ninth defendant was entitled to 5-1/6 cents in item No.1, 10 cents in item No.2 and 2.45 cents in item No.3; on 20.08.1970, the ninth defendant sold 5 6/16 https://www.mhc.tn.gov.in/judis S.A(MD)No.1281 of 2006 cents in item No.2 to eighth defendant; the eighth defendant has a building in item No.2 and the defendants 8 and 9 are in joint possession of share; defendants 8 and 9 have no objection in plaintiff getting partition of his share in plaint item and in partitioning the shares of the defendants 8 and 9 may be allotted jointly.
7.On the basis of the said pleadings, oral and documentary evidence, the trial Court dismissed the suit holding that the plaintiff was not entitled to any share in the suit property and however, the plaintiff cannot also have any share in plots according to Ex.A.5 and A. 6-Oodukoor awards and therefore, the plaintiff was not entitled to any share in the suit property. Challenging the same, the plaintiff preferred an appeal in A.S.No.324 of 1978 on the file of the Sub Court, Kuzhithurai and the appellate Court also dismissed the appeal. Challenging the concurrent judgments and decrees passed by the Courts below, the plaintiff has preferred second appeal in S.A.No.1285 of 1985 on the file of this Court and this Court, by judgment and decree, dated 17.07.1998, allowed the Second Appeal and granted 1/3 share out of 57-1/2 cents to the plaintiff/Vasudevan. 7/16 https://www.mhc.tn.gov.in/judis S.A(MD)No.1281 of 2006
8.The legal heirs of Lakshmi Kutti along with Sathya Bama preferred an application in I.A.No.501 of 2004 in O.S.No.27 of 1977 on the file of the 1st Additional District Munsif Court, Kuzithurai, for passing a supplementary preliminary decree for declaring 2/3 share out of 57-1/2 cents in the plaint schedule properties. The petitioners in I.A.No.501 of 2004 are the daughter and children of pre-deceased daughter of Sivaraman Asari.
9.On the basis of the rival pleadings made on either side, the trial Court, by judgment and decree, dated 06.12.2005 dismissed the application in I.A.No.501 of 2004 in O.S.No.27 of 1977 on the ground that there was no declaration of shares in favour of the daughters of the Sivaraman Asari in the previous round of litigation and hence, the prayer for supplementary preliminary decree was not maintainable.
10.Challenging the same, the petitioners preferred an appeal suit in A.S.No.128 of 2005 on the file of the Sub Court, Kuzhithurai.
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11.The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, has dismissed the appeal and confirmed the judgment and decree passed by the trial Court.
12.Challenging the said Judgments and decrees passed by the Courts below, the present Second Appeal has been preferred at the instance of the ninth defendant and legal representatives of the eighth defendant as appellants.
13.On 16.07.2024, this Court admitted the present Second Appeal and framed the following substantial question of law for consideration:
'Whether the Courts below are right in rejecting the petition for supplementary preliminary decree filed by defendant No.9 and the legal representatives of eighth defendant for 2/3 share on the ground that the High Court did not declare the share of defendants 8 and 9 in S.A.No.1285 of 1985?' 9/16 https://www.mhc.tn.gov.in/judis S.A(MD)No.1281 of 2006
14.The learned counsel appearing for the appellants would submit that when this Court in S.A.No.1285 of 1985 vide judgment dated 17.07.1998 preferred by the plaintiff, specifically found that Sivaraman Asari, father of the present appellants and first respondent herein was the owner of the entire extent of 57-1/2 cents, the courts below are incorrect in declining the relief prayed for in I.A.No.501 of 2004; the Courts below misdirected itself as if it is an application filed for passing final decree and dismissed I.A.No.501 of 2004 on the misconception of facts and scope of passing supplementary preliminary decree; when the ownership of Sivaraman Asari in respect of 57-1/2 cents attains finality by way of judgment of this Court in S.A.No.1285 of 1985, the Courts below ought not to have dismissed the application filed by the other two legal heirs of Sivaraman Asari for passing supplementary preliminary decree.
15.The learned counsel appearing for the respondents 4 to 6, 14, 16 & 17 would submit that the findings in respect of the sixth defendant in the suit shall not be disturbed and as far as the claim of the present appellants, the same may be decided vide judgment dated 17.07.1998 in S.A.No.1285 of 1985.
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16.Heard the learned counsel appearing for the appellants, the learned counsel appearing for the first respondent and the learned counsel appearing for the respondents 4 to 6, 14, 16 & 17 and also perused the records carefully.
17.On perusal of the materials available on record, it is seen that it is not in dispute that Sivaraman Asari is the owner of 57-1/2 cents in the suit schedule properties as held by this Court in para 6 of the judgment dated 17.07.1998 in S.A.No.1285 of 1985, wherein it reads as follows:
'6.The counsel for the appellant contends that she was entitled to a share in the suit property on the very findings of the lower appellate Court recognising that the father of the appellant had title over the suit property. In paragraph 10 of the Judgment, it is seen that the appellate Court has recorded a finding that the father of the appellant had title over an extent of 30 cents in Survey No.2316 and 12 cents in Survey No.2314 and that he also took Ex.A. 2 sale from Lakshmi Pillai over an extent of 15-1/2 cents and the building in Survey No.2315. Therefore, 11/16 https://www.mhc.tn.gov.in/judis S.A(MD)No.1281 of 2006 the appellate Court has concluded that the appellant's father had title over an extent of 30 cents in Survey No.2316, 12 cents in Survey No.2314 and 15-1/2 cents inclusive of the building in Survey No.2215.'
18.Further, it is also not in dispute that the first appellant before this Court is the daughter of the abovesaid Sivaraman Asari and the other appellants are the children of late.Lakshmi Kutti, who was another legal heir of Sivaraman Asari. It is also not in dispute that the plaintiff-Vasudevan got a preliminary decree of 1/3 shares out of 57-1/2 cents belongs to Sivaraman Asari in the judgment, dated 17.07.1998 in S.A.No.1285 of 1985. Only thereafter, the present appellants filed I.A.No.501 of 2004 in O.S.No.27 of 1997 before the trial Court with a prayer to pass preliminary decree for remaining 2/3 share in their favour jointly. However, the same was declined by the trial Court on the ground that there is no declaration of shares in respect of the defendants 8 and 9, namely, Lakshmi Kutti and Sathya Bhama in the previous round of litigation and the same was also confirmed by the first Appellate Court.
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19.In view of the above, this Court is of the view that the plaintiff-Vasudevan is entitled to get a preliminary decree of 1/3 shares out of 57-1/2 cents belongs to Sivaraman Asari. The remaining two daughters, namely Lakshmi Kutti and Sathya Bhama, are also entitled for the shares in the property equally. Further, 2/3 share to be divided equally between the two daughters also. But, both the trial Court as well as the Appellate Court has not decided this issue stating that only regarding 57-1/2 cents in the second appeal in S.A.No.1285 of 1985 it was decided that Vasudevan Asari is entitled for one-third share in 57-1/2 cents. Since there is no finding regarding the daughters, the trial Court as well as the Appellate Court have erred in not considering the fact that the daughters are also equally entitled for this share, this Court is inclined to set aside the Judgments and decrees of the Courts below and now clarify that the said daughters are also entitled to equal share along with their brother-Vasudevan ie., one-third each in 57-1/2 cents in which their father Sivaraman Asari is entitled to. The Judgment and decree in respect of the sixth respondent is sustained. The substantial question of law framed is ordered accordingly. 13/16 https://www.mhc.tn.gov.in/judis S.A(MD)No.1281 of 2006
20.In the result, the Second Appeal stands allowed. No costs. Consequently, connected Miscellaneous Petition is closed.
26.09.2024
Index : Yes/No
Internet : Yes/No
ps
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S.A(MD)No.1281 of 2006
To
1.The Sub Court,
Kuzhithurai.
2.The 1st Additional District Munsif Court,
Kuzhithurai.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.1281 of 2006
V.BHAVANI SUBBAROYAN, J.
ps
Judgment made in
S.A(MD)No.1281 of 2006
26.09.2024
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