Madras High Court
P. Lakshmanian vs P. Jeyalakshmi on 17 March, 2014
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17/3/2014 CORAM THE HONOURABLE Mrs.JUSTICE PUSHPA SATHYANARAYANA Second Appeal (MD) No.878 of 2013 1. P. Lakshmanian 2. Shanmuganatham ... Appellants Vs 1. P. Jeyalakshmi 2. Subbulakshmi 3. C. Sedhu Sankarasubbu 4. Giri Ranganathan 5. C. Selvarajan 6. C. Gomathy 7. C. Murugan 8. C. Muthulakshmi 9. C. Loganathan 10. Patavarayan 11. S. Navamani 12. D. Ponraj ... Respondents PRAYER Second Appeal filed under Section 100 of Civil Procedure Code against the fair and decreetal order passed in A.S.No.05 of 2012 on the file of the District Judge, Tirunelveli dated 13/10/2011 confirming the decree and judgment passed in O.S.No.15 of 1992 dated 20/10/2011 on the file of the Sub- Court, Ambasamudram. !For Appellants ... Mr.T.S.R.Venkataramana ^For Respondents ... Mr.M.Vallinayagam, Sr. Counsel for Mr.D.Nallathambi for R.1. Mr.H.Arumugam for Mr.G.Esakki for R.R.11 and 12. - - - - - - :JUDGMENT
This Second Appeal is directed against the final decree proceedings passed I.A.No.43 of 2007 in O.S.No.15 of 1992 on the file of the Sub-Court, Ambasamudram.
2. The relevant facts which are necessary for deciding the above Second Appeal are as follows:-
One Aiyapillai and Paramasivam were brothers. The said Paramasivam had two wives and the plaintiff and the fourth defendant were born through his first wife Piramuammal. The defendants 1, 2 and 3 were born through the second wife Chellammal. The said Paramasivam died in the year 1979. The suit was filed by the plaintiff in the year 1983 for partition of her 1/5th share. According to the plaintiff, the suit schedule properties were acquired by her father Paramasivam on his own. He was doing business in Srilanka, earned money and came to India and purchased the suit schedule properties in his name and also in the names of the defendants 1 to 3, who are the sons.
3. It is the further case of the plaintiff that though the properties were purchased in the names of the defendants, they have been thrown in a common hotch pot and were enjoyed in common. So, the sale deeds were said to have been executed in the names of the defendants 1 to 3 Benami. Therefore, the plaintiff claimed partition of her 1/5th share.
a. The suit was resisted by the defendants on the ground that the plaintiff was not entitled to any share in the properties and that Paramasivam executed a Will dated 15/9/1978 in favour of the defendants. Therefore, the plaintiff is not entitled to any share in the suit property.
4. Based on the above pleadings and the evidence and depositions, the Sub-Court, Tenkasi, on 21st August, 1989, decreed 1/5th share in favour of the plaintiff. While deciding the suit, the following issues were framed.
"1. Whether the properties in the name of the defendants 1 to 3 are purchased benami and the said issue was tried along with other issues
2. Whether the suit properties were self-acquired properties of the deceased Paramasivam?"
5. In paragraph 7 of the trial Court judgment, the said issues were answered as follows:-
"Now, the question in the suit is whether the suit properties are the self acquired properties of Paramasivam Pandither. He has got the properties through his brother under Ex.B.7. The suit was very much contested on the strength of a will executed by Paramsivam Pandithar under Ex.B.4 and the same will be referred in some other issues. The defendant have not stated about the settlement deed Ex.B.8 in the written statement and they have not contested the case that the properties covered under Ex.B.8 are to be deleted from the suit schedule properties. The settlement deed Ex.B.8 was executed long back. So the question of the validity of the settlement deed under Ex.B.8 and the acceptance of the same is to be decided in a separate suit. It is seen from the evidence that the suit properties are the self acquired properties of Paramasivam Pillai. The defendants have not contested about the character of the suit. Hence I answer issue No.1 that the suit properties were the self acquired properties of Paramasivam Pandithar. I answer issue No.2 that there are no properties purchased in the name of the defendants 1 to 3 benami by Paramasivam Pillai."
6. Aggrieved by the said judgment, the defendants preferred an appeal before this Court in A.S.No.1092 of 1989. This Court also had held that the plea of benami transaction as claimed by the defendants were not established and found that all the properties were acquired by Paramasivam Pillai and the Will put forth by the defendants under Ex.B.4 was also held to be not proved in accordance with law.
7. So far the claim of benami is concerned, this Court had held that the defendants have not specifically stated which are all the properties purchased by their father benami in their names. Admittedly, after the death of Paramasivam, the first defendant was managing the properties and was sharing profits with the plaintiff and the fourth defendant. Having found thus, the appeal preferred by the defendants 1 to 3 was dismissed, confirming the trial Court decree Aggrieved by the same, the defendants also preferred S.L.P No.3812 of 2007 which was also dismissed on 8/3/2007. Therefore, the plea of benami the genuineness of the Will and the entitlement of the plaintiff have become final.
8. In the meanwhile, the final decree application was filed in I.A.No.43 of 2007 for appointing the Commissioner and divide the properties by metes and bounds. The Commissioner was also appointed, who had divided the properties among the parties and filed his report for which there was no objection initially. Thereafter, the defendants 1 and 3, who are also the appellants herein had filed I.A.No.234 in I.A.No.43 of 2007 for accepting the objections filed by them on 9/3/2007. The said I.A was dismissed on 23/1/2008. The defendants also filed I.A.No.111 of 2007 to receive the additional counter to the final decree proceedings and that was also dismissed on 23/1/2008after contest. In all these applications also, the defendants re-agitated the issue of benami and wanted to exclude those properties purchased in their names.
9. Aggrieved by these orders, the defendants had preferred C.R.P.Nos.886 to 888 of 2008 before this Court. This Court also dismissed the revisions on 31/7/2008 holding that there were no infirmities or illegalities found in those orders. While so, the plaintiff/first respondent herein had filed I.A.No.43 of 2007 for passing the final decree, based on the preliminary decree and allot 1/5th of her share by metes and bounds. The appellants herein had filed his counter and stated that item Nos.1 to 5 in first schedule and item Nos.11, 12, 13, 16 to 19 should be deleted from the partition suit as they are not available for partition and claimed that they are the personal properties of the appellants. They have also further claimed that item Nos.3 to 6 in the second schedule also were already sold and they are not available for partition.
10. The appellants had further contended that item No.17 of the first schedule belonged to their mother Chellammal and therefore, they are alone entitled to the property. Though the appellants admitted that the plaintiffs are entitled to 1/5th share in the suit properties, however, contended that the plaintiff is entitled to 1/5th share not in all the properties listed but only in few of the properties that belonged to the father.
11. The Sub-Court, Ambasamudhram had allowed the application and passed the final decree based on the report of the Commissioner and directed the report of the Commissioner to be attached to the final decree. As per the final decree, the plaintiff is entitled to item Nos.5, 6, 8, 9, 11, 14, 25, 26, 27, 28, 30 and 34 in schedule 1 and items 1, 2, 3, 10 and 12 in schedule 2. The fourth defendant, who is the sister of the plaintiff was allotted 16 to 21 items in first schedule and items 5, 11, 13, 14, 15, 16, 17, 18 and 19 in second schedule of the suit property.
12. Aggrieved by the same, the defendants 1 and 3 filed A.S.No.5 of 2012 on the file of the Principal District Judge, Tirunelveli. The Principal District Judge also confirmed the order passed in I.A.No.43 of 2007. Aggrieved by the same, the above Second appeal has been filed.
13. Even at the time of admission, as the respondents had lodged caveat, it was agreed to take up the appeal itself for final hearing, by the consent of both the counsels. Accordingly, the appeal was taken up for final hearing today, after giving notice to the Caveator on the following questions of law:-
"a. Is there any legal bar for a Hindu Father to buy properties in the name of his minor children during the period of Ex.R.1 to R.8 and R.10?
b. Whether the Courts below are not perverse in rejecting registered document R.1 to R.8 and R.10 contrary to TP Act, Registration Act and Stamp Act and is not the Courts below bound by finding that the properties purchased in the name of appellants and respondent 2 when the were minors are not benami and refuse to act on it?
c. Can the rightful and true owner of property under R.1 to R.8 and R.10 be denied his/her right by a partition suit filed by a sister?
d. Are the Courts below right in acting an oral evidence contrary to registered documents violating the provisions of Sec.91 of the Indian Evidence Act?"
14. The counsel for the appellants contended that those properties that were purchased in their names by their father Paramasivam were not available for partition. It was contended by the learned counsel that as the plaintiffs had raised the question of benami, the burden was on the plaintiff to establish the same. The plaintiff having not established that the properties were not purchased benami, she is not entitled for her share in the same.
15. It was contended by the counsel for the appellants that the final decree is only the continuation of the preliminary decree and that when the rights are not conclusively determined, it was open to him to agitate the issues again. The learned counsel also referred to Section 2 (ii) of the Code of Civil Procedure where 'Decree' is defined as under:-
"Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question with (omitted by Act 104 of 1976) Section 144, but shall not include -
a. any adjudication from which an appeal lies as an appeal from an order, or b. any order of dismissal for default.
Explanation - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."
16. The learned counsel also relied on the definition of 'Decree' by P.Ramanatha Aiyar in The Law Lexicon, which is as follows:-
"Decree, as a rule, should not be drawn up on the model of a steel frame and it is always desirable that the Court, under its inherent powers and in order to give full effect to its decision, should frame its decree in such an elastic form as would define the respective rights and liabilities of the several parties to the suit and thus to do substantial justice between all those who are concerned with the result of litigation."
17. According to the learned counsel appearing for the appellants, as the rights of the parties are conclusively determined only in the final decree, it was open to him to re-agitate the same issues even in final decree proceeding.
18. In a preliminary decree only the right of the parties are determined and division by metes and bounds is done only in the final decree proceedings. Therefore, the proceedings of the suit instituted by the respondents cannot be treated to have been reached finality so far as the partition is concerned. This contention of the learned counsel may not be correct because, after considering these issues, the trial Court has passed the decree declaring the share of the plaintiff. When the plaintiff has made a claim of share in the suit schedule properties and has specifically averred that though they are purchased in the names of her brothers, it was intended to benefit all the members of the family and it should be treated as self-acquired properties of the father. The defendants had not chosen to establish that those properties standing in their names were purchased by the father only to benefit them and it was not available for partition and that the claim of the plaintiff is unsustainable.
19. However, as stated earlier, while passing the preliminary decree, the trial Court had considered the issue and held that the entire properties were self-acquired properties of the said Paramasivam and there are no properties purchased benami and declared the share of the plaintiff. The defendants 1 and 3 also had challenged the preliminary decree in the appeal but they have not raised this issue instead only challenged the share allotted to them. Even, before the Supreme Court also the said point was not raised. Therefore, the finding of the trial Court as confirmed by the High Court and the Supreme Court has become final. Now, in the final decree proceedings, it is not open to the defendants to re-agitate the same issue.
20. It has to be noted that if after passing of the preliminary decree in a partition suit but before the passing of the final decree if there has been a diminution or an enlargement of the share of the properties by the death of the parties or otherwise or the rights of the parties are altered by a statutory amendment, it may be incumbent upon the Court to decide the matter and pass final decree keeping in mind the subsequent changes. Whereas, in this case, there is no such enlargement or diminishing or any statutory amendment altering the shares of the parties. Therefore, having allowed the finding to be final, the defendants are estopped from re-agitating the same issue in the final decree proceeding. Therefore, by virtue of the preliminary decree passed by the trial Court and as confirmed by the High Court and Supreme Court, the issues decided therein are deemed to have become final and in this case, there is no change of status between the parties or any statutory amendment altering the shares of the parties.
21. The only objection of the defendants is that the properties standing in their individual names and the properties got devolved on them from their mother should be excluded.
22. The learned counsel appearing for the appellants also pressed into service the citation reported in 1925 PATNA 433 LAKSHMI NARAYAN TEWARI AND OTHERS Vs. RAMSARAN TEWARI AND ANOTHER and the relevant portions are extracted hereunder:-
"... There is no contest now that a partition ought to be decreed nor is there any dispute about the shares of the parties.
... All that the plaintiffs were required to do was to plead their title to and possession of and share in the property that was to be partitioned. The question which has been discussed with regard to these plots will properly arise for decision when the final decree is made."
23. The above precedent may not be of any help to the appellants as it only says the plaintiffs were required to plead their title and possession of their share in the property that was to be partitioned. If the plaintiffs are really not entitled to these properties, it is for the defendants to state how the plaintiff should be non-suited regarding certain items of the properties. In the case before me, the defendants having allowed the issue to become final is trying to re-agitate the same which cannot be permitted in law. In this regard, the learned counsel for the respondents relied on 2007 ILR Karnataka - 4308 (K. SUNDAR RAO AND 2 OTHERS Vs. K. RAMAKRISHNA RAO), wherein in paragraph 17, it is held as follows:-
"The legal principles deducible from the aforesaid decisions that in a suit for partition, the shares of the parties are determined as the stage of preliminary decree and actual partition is effected as per the final decree. In a preliminary decree, certain rights are conclusively determined and unless the preliminary decree of the Court is challenged in appeal, the right so determined becomes final and conclusive and cannot be questioned in the final decree. A final decree cannot amend or go behind the preliminary decree on a matter decided by the preliminary decree. A preliminary decree passed in a partition suit is not a tentative decree. It is regarded as conclusive in so far as the matters dealt by it Section 97 of the Code of Civil Procedure clearly indicates that the matters covered by a preliminary decree is regarded as embodying the final decision of the Court passing that decree. However, changes in the circumstances after the preliminary decree has been passed can be taken into account. For example, if the parties arrive at a compromise or where some of the parties give up certain rights in favour of one of the parties after the preliminary decree, the effect of such compromise or giving up should be given while passing the final decree."
24. From the foregoing decision also, it is clear that once a preliminary decree has become final, the parties are estopped from taking any contention at the stage of the final decree which was not raised in the suit. However, in the present case, the said issue was raised, agitated and decided and allowed to become final. Therefore, the Court cannot go beyond the preliminary decree and no interference can be done in the appeal. In view of the above, there is no other question of law much less the substantial questions of law in the above appeal.
25. There is one another aspect from which the same could be viewed viz., resjudicata.
26. The counsel for the respondents enlisted the number of interlocutory proceedings between the parties in which the same contention as raised in the appeal were raised by the defendants but failed in their attempts. Even revision petitions before this Court also were dismissed.
27. No doubt, repeated applications based on the same facts and same relief might be disallowed by the Court does not rest on the principle of res judicata. The reason being the distinction between rule of res judicata and the rejection on the ground that no new facts have been adduced. In order to make the principle of res judicata applicable to a decision on a particular issue of fact, even if fresh facts were placed before Court, the bar would continue to operate and a fresh investigation will be precluded. Whereas on the other hand, on proof of fresh facts, the Court would be competent to make an order by taking into account the fresh facts before the Court.
28. In the decision U.P. STATE ROAD TRANSPORT CORPORATION Vs. STATE OF U.P AND ANOTHER {AIR 2005 SC 446}, it has been held that "The principle of res judicata is based on the need of giving a finality to judicial decisions. The principle which prevents the same case being twice litigated is of general application and is not limited by the specific words of Section 11 of Code of Civil Procedure in this respect. Res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. {See Sathyadhan V. Smt. Deorajin Devi (AIR 1960 SC 941)}."
29. Therefore, it is clear that once a decision is rendered on a set of facts, it shall not be adjudged again. Normally and primarily, the principle of res judicata applies between past and future litigation. When a matter, be it a question of fact or law, between two parties in a suit is decided and the decision is final either because no appeal was filed or an appeal was dismissed, the same matter shall not be allowed to be canvassed in a future suit. The principle of Section 11 is applied by Courts for achieving finality in a litigation.
30. In AIR 1960 SUPREME COURT - 941 (V 47 C 167) SATYADHYAN GHOSAL AND OTHERS Vs. SMT. DEORAJIN DEBI AND ANOTHER, it is held that "The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings."
31. Following the same, in PRAHLAD SINGH Vs. COL. SUKHDEV SINGH reported in {(1987) 1 SUPREME COURT CASES 727}, it has been held that "The finding recorded by Court at an earlier interlocutory stage in a proceeding such as while setting aside the ex parte decree, would be binding at a later stage in the same proceeding in the absence of appeal against that finding."
32. As the lis has attained its finality, the principle of res-judicata debars a Court from exercising its jurisdiction whereas so far as the parties to the lis are concerned, doctrine of issue estoppel is invoked against them. Any such issue decided against the defendants, they are estopped from raising the same.
33. For the reasons aforementioned, I am of the opinion that the judgment of the Courts below are correct and I find no reason to take a different view.
34. In the result, this Second Appeal is dismissed, confirming the judgment and decree passed in I.A.No.43 of 2007 in O.S.No.15 of 1992 on the file of the Sub-Court, Ambasamudram.No costs.
mvs To
1. The District Judge, Tirunelveli
2. The Sub-Court, Ambasamudram.