Madras High Court
Baliah Nadar And Anr. vs Rayappan And Ors. on 10 January, 1992
Equivalent citations: (1993)1MLJ60
JUDGMENT Srinivasan, J.
1. Defendants 3 and 4 are the appellants in both the appeals. One suit is for declaration that plaintiff and second defendant are absolute owners of the suit property. The other suit is for partition and separate possession of one third share of the plaintiff. The first defendant in the suit who is the brother of the plaintiff claimed one-third share in all the properties. Defendants 3 and 4 contested the claim of the plaintiff as well as defendants 1 and 2. The trial court has found that the plaintiff is entitled to one-fourth share in Door No. 7, which is the property in O.S. No. 82 of 1976 out of which S.A. No. 2262 of 1981 arises. In the other suit, the trial court granted a decree as prayed for by the plaintiff.
2. On appeal, the Principal subordinate Judge, Tiruchirapalli, modified the decree in O.S. No. 82 of 976 and granted one third share to the plaintiff in the suit property. In the other appeal, the learned subordinate Judge has granted a decree, declaring that the plaintiff and second defendant are entitled to two thirds share and on that basis granted an injunction.
3. In these second appeals, it is argued that both the suits are not maintainable. In S. A. No. 2262 of 1981, it is contended that it is a suit for partial partition and it is barred by the principles of res judicata in view of the dismissal of an earlier suit O.S. No. 233 of 1971 filed by the plaintiff. In S.A. No. 2261 of 1981, similar contentions are raised.
4. There is no substance in the argument that the suits are barred by the principles of res judicata. O.S. No. 233 of 1971 was a suit for partition which was dismissed for default. There was no decision on merits. Hence, the principles of resjudicata will not apply. If the parties are co-sharers, then they are entitled to maintain a suit for partition so long as there is no division. Just because an earlier suit for partition is dismissed for default without a decision of the Court that the plaintiff is not entitled to a share in the properties, the plaintiff will not cease to be a co-sharer. Hence, a second suit is maintainable as the cause of action is a continuing one.
5. The other contention that the suit is bad for partial partition is also unsustainable in view of the judgment of this Court in Pakkiri Mohammed v. Kaji Mohammed Manjool Sahib 45 M.L.J. 321. It is only a Hindu joint family, a suit for partial partition is generally not accepted. The parties in the instant case are Indian Christians and that principle cannot apply and the ruling referred to above will govern.
6. Significantly, in the written statement of defendants 3 and 4, the title of the plaintiffs father to the property has not been disputed. On the death of the plaintiffs father, plaintiff and defendants 1 and 2 will be equally entitled to the properties.
7. Hence, the conclusion of the lower appellate court is unassailable. The second appeals fail and are dismissed. There will be no order as to costs.