Madras High Court
Agustin (Died) vs Maria Pushpam on 18 August, 2021
S.A.(MD)No.1242 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.08.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.1242 of 2011
and
M.P.(MD)No.1 of 2014
1.Agustin (Died)
2.Angel Mary ... Appellants
(A2 is suo motu impleaded as LR of the
deceased sole respondent vide order dated
13.08.2021 made in S.A.(MD)No.1242 of
2011 by GRSJ)
Vs.
1.Maria Pushpam
2.A.Santhoose Mary ... Respondents
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree dated 10.03.2011 passed in A.S.No.81 of 2010
on the file of the Subordinate Court at Padmanabhapuram by setting aside the
judgment and decree dated 28.04.2010 passed in O.S.No.89 of 2007 on the file
of the Principal District Munsif Court at Padmanabhapuram.
For Appellants : Mr.J.John Jayakumar
For Respondents : Mr.V.M.Balamohan Thambi
https://www.mhc.tn.gov.in/judis/
1/10
S.A.(MD)No.1242 of 2011
JUDGEMENT
This second appeal arises out a suit for partition. O.S.No.89 of 2007 on
the file of the Principal District Munsif Court, Padmanabhapuram was filed by
the respondents herein namely., Maria Pushpam and Santhoose Mary. Their
case was that the suit properties originally belonged to their father namely.,
Late.Ambrose. Ambrose got married to Barbara Ammal. The plaintiffs/Maria
Pushpam and Santhoose Mary and the defendant/Agustin were born through
the wedlock. Ambrose passed away on 28.06.1980 without executing any Will.
Later the mother also passed away intestate. The case of the plaintiffs is that
thereafter the suit property devolved in equal shares in favour of the plaintiffs
and the defendant. Since the defendant was declining to amicably partition the
suit property, they had to file the said suit. The defendant filed written
statement controverting the plaint averments. The defendant also pointed out
that even before the filing of the suit, he had settled the property in favour of
his wife on 07.12.2006 (Ex.B4). The suit was therefore bad for non joinder of
necessary parties. He also pointed out that even during his life time, their
father/Ambrose gifted certain items in favor of each of the plaintiffs vide
Exs.B1 and B2. He would also state that it was he, who bore the marriage
expenses. Therefore, according to him, the suit for partition was liable to be
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.1242 of 2011
dismissed. Based on the divergent pleadings, the trial Court framed the
necessary issues.
2.The first plaintiff/Maria Pushpam examined herself as P.W.1 and
marked Exs.A1 to A9. The defendant examined himself as D.W.1 and one
Paulpillai was examined as D.W.2. Exs.B1 to 12 were marked on the side of
the defendant.
3.After a consideration of the evidence on record, the trial Court by
judgment and decree dated 28.04.2010 dismissed the suit. Questioning the
same, the plaintiffs filed A.S.No.81 of 2010 before the Sub Court,
Padmanabhapuram. By the impugned judgment and decree dated 10.03.2011,
the first appellate Court set aside the judgment and decree passed by the trial
Court and allowed the appeal and held that the plaintiffs are entitled to get the
relief of partition and separate possession of 1/3rd share each in the suit
properties and buildings. Challenging the same, this second appeal came to be
filed.
4.The second appeal was admitted on the following substantial questions
of law:-
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.1242 of 2011
“1.Whether the lower appellate Court rightly
reversed the judgment and decree for partition passed by
the trial Court by holding that the Rule of partial partition
is applicable to Hindus and not to Christians?
2.Whether the Courts below rightly held that the
alienees are not necessary parties and the suit is not bad for
non joinder? and
3.Whether the lower appellate Court rightly reversed
the judgment and decree for partition passed by the trial
Court by holding that there is no need to add the remaining
properties as suit properties?”
5.The learned counsel for the appellants submitted that it has been
established beyond dispute that even before filing of the suit, the defendant had
settled the suit property in favour of his wife namely., Angel Mary. The suit
was conducted without impleading the settlee/Angel Mary. Of course, during
the pendency of the second appeal, the original appellant passed away and
Angel Mary had come on record in her capacity as his wife. But then, that
would not cure the initial defect. He submitted that the decision of the trial
Court must be restored.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.1242 of 2011
6.Per contra, the learned counsel for the respondents submitted that the
issue regarding non joinder was already held in favour of the plaintiffs and
therefore, on that ground, the impugned judgment and decree ought not to be
interfered with.
7.I carefully considered the rival contentions and went through the
evidence on record.
8.The suit property belonged to Ambrose, the father of the plaintiffs and
the original defendant namely., Agustin. He died intestate. His wife/Barbara
Ammal also died few years later interstate. Therefore, in the very nature of
things, the two daughters and the son will be entitled to 1/3rd share in the suit
properties. The only contention urged by the learned counsel for the appellants
is that the suit was obviously bad for non joinder of necessary parties. This
contention does not have merit because as rightly pointed out by the learned
counsel for the respondents, after the suit properties were settled in her favour,
Angel Mary sold the same in favour of third parties vide Ex.B8 dated
04.04.2008 and Ex.B9 dated 19.05.2008. Thus Angel Mary ceased to have any
interest in the suit properties. The plaintiffs therefore filed I.A.No.447 of 2009
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.1242 of 2011
to implead the alienees namely., Yesudhas, Jackuline and Cyrill. Interestingly
the alienees contested and opposed I.A.No.447 of 2009. Accepting their
objections, I.A.No.447 of 2009 came to be dismissed. That is why, the trial
Court after framing the first issue as to whether the suit is hit by non joinder of
necessary parties, answered the same in favour of the plaintiffs. Paragraph No.
8 of the judgment of the trial Court reads as follows:-
“Issue No.1: It is the main contention of the
defendant that the suit is bad for non-joinder of
necessary parties. The learned counsel for the
defendant vehemently argued that first plaintiff's
husband Masillamony being a purchaser of suit
properties is a necessary party to the suit. He further
argued that as the defendant has no issues he has
gifted the properties to his wife Angel Mary. Being so,
wife of the defendant Angel Mary in whose name patta
stands in operation of the gift deed is also a necessary
party. During the pendency of the suit, it is revealed
that the so called Angel Mary has alienated the suit
properties in favour of Yesudhas, Jackuline and others
under Ex.B8 and B9. The learned counsel for the
plaintiffs vehemently argued that the plaintiffs side
filed a I.A.No.447/2009 to implead Yesudhas, Jackuline
and Cyrill be subsequent purchasers and for the above
I.A. was dismissed, and hence, he argued that the issue
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.1242 of 2011
becomes infructuous before this Court. It is to be
noted that when the so called purchasers Yesudhas,
Jackuline and Cyrill have purchased the property
under Ex.B8 and B9, it is to be decided that they have
purchased the property from the wife of the defendant
at risk subject to the result of the suit. In case the
defendant and her wife Angel Mary had no right to
alienate the property Ex.B8 and B9 become void
documents. This being so, this Court feels that the so
called purchasers namely Yesudhas, Jackuline and
Cyrill are not necessary parties to the suit. At this
stage, it is to be considered who is a necessary party to
the suit. The necessary parties to the suit is a party
without whose presents a suit cannot be adjudicated
effectively. This Court does not feel that presence of in
the above named subsequent purchasers are not
necessary parties to the suit. Even in their absence this
suit can be effectively tried and adjudicated. For the
above said reasons and discussions, it is decided that
the suit is not hit by non-joinder of necessary parties
and the above issue is answered accordingly against
the defendant.”
9.Since Angel Mary had already divested herself of all interest in the suit
properties and sold the same in favour of the aforesaid three parties, such a
contention can no longer be advanced by her. Therefore, I decline to answer
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.1242 of 2011
the substantial questions of law in favour of the appellant. The second appeal
is dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
18.08.2021
Index : Yes / No
Internet : Yes/ No
ias
Note :In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy
of the order that is presented is the correct copy, shall be
the responsibility of the advocate/litigant concerned.
To:
1.The Sub Court,
Padmanabhapuram
2.The Principal District Munsif Court,
Padmanabhapuram.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.1242 of 2011
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.1242 of 2011
G.R.SWAMINATHAN, J.
ias
S.A.(MD)No.1242 of 2011
18.08.2021
https://www.mhc.tn.gov.in/judis/
