Madras High Court
V.Saroja vs V.Ramalingam Chettiar on 16 December, 2021
CRP.NPD.No.1228/2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
CRP.NPD.No.1228/2019 & CMP.No.7882/2019
[Hybrid Mode]
1.V.Saroja
2.V.Palanisamy Chettiar
3.V.Senthilkumar Chettiar .. Petitioners /
Lrs of the 2nd Defendants
Vs.
V.Balasubramania Chettiar [Died]
V.Velayutham Chettiar [Died]
1.V.Ramalingam Chettiar
2.V.Somasundaram Chettiar
3.V.Shanmugam Chettiar
4.S.Rajalakshmi
5.S.Saraswathi
6.Santha @ Santhi
V.Krishnaswamy Chettiar [Died]
7.manicka Chettiar
8.Jayaraman [Deleted by Supreme Court]
9.Secretary
South Arcot Coop Central Bank, Cuddalore [deleted by Supreme Court]
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CRP.NPD.No.1228/2019
10.Vaidyanathan [Deleted by Supreme Court]
11.M.Narayanasamy Padayatchi [Deleted by Supreme Court]
Duraikanu Pillai [Died]
12.Narayanasamy Naidu
13.Ramasamy Padayatchi
14.Radhakrishna Reddiar
Kasiraja Padayatchi [Died] [Deleted by Supreme Court]
Singara Padayatchi [Died]
Anjapuli [Died]
15.Papthi Ammal [Deleted by Supreme Court]
16.Arumugam [Deleted by Supreme Court]
17.Veerappan [Deleted by Supreme Court]
V.Nagalakshmi Ammal [died]
18.B.Saravanan
19.N.Subramania Chettiar
20.B.Rajamani
21.Poongothai
22.Muthulakshmi
23.Gnanmbal
24.Sekar @ Muthusamy
25.Duri @ Arunachalam
26.Selvaraj
27.Ramesh
28.Sornam
29.Gomathi
30.Baladhandayutham @ Balathandayuthapani
31.Mani Padayatchi
32.Sivakumar Padayatchi
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CRP.NPD.No.1228/2019
33.Somasundara Padayatchi
34.Mani .. Respondents /
Defendants
35.V.Dhandapani Chettiar .. R35 / Plaintiff
Prayer:- Civil Revision Petition filed under Section 115 CPC against fair
and decreetal order dated 13.04.2015 passed in I.A.No.689/2006 in
OS.No.300/1974 on the file of the learned Principal District Munsif,
Cuddalore District with a prayer to set aside the same.
For Petitioners : Mr. R.Muralidharan
For RR 1 to 17 &
19 to 34 : Exparte Notice
For R35 : No appearance
For R18 : Mr.Guru Raj
ORDER
(1) This Civil Revision Petition is directed against the order dated
13.04.2015 made in IA.No.689/2006 in OS.No.300/1974 on the
file of the learned Principal District Munsif, Cuddalore.
(2) Brief facts that are necessary for the disposal of this Civil Revision
Petition are as follows.
CRP.NPD.No.1228/2019
(3) The revision petitioners claim that they are the legal heirs of the 2 nd
defendant in the suit in OS.No.300/1974. It is stated that the 1st
petitioner is the wife and petitioners 2 and 3 are the sons of the late
Velayutham Chettiar. It is admitted that one Dhandapani Chettiar
filed a suit for partition for his share in the suit property in
OS.No.300/1974 before the Sub Court, Cuddalore. The dismissal
of the suit by the Court below was confirmed by this Court in the
First Appeal and in the Letters Patent Appeal. It is also admitted
that the Hon'ble Supreme Court had reversed the judgment and
decree of the Lower Court and held that the plaintiff and
Dhandapani Chettiar and defendants 2 to 9 are the only legal heirs
of Rajathiammal entitled to succeed to the properties of
Rajathiammal.
(4) Unfortunately, during the pendency of the appeal before the Apex
Court, it is stated that late Velayudam Chettiar died on 09.06.1997.
The appellant also did not take any steps to implead the legal heirs
of the said Velayudam Chettiar. However, the revision petitioners
herein, filed an application in IA.No.689/2006 in OS.No.300/1974
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to implead themselves as defendants in the suit in the capacity of
legal representatives of the deceased 2nd defendant-Velayudam
Chettiar for proper adjudication. The said application was resisted
by some of the parties to the suit on the ground that they cannot get
a preliminary decree after the period of limitation.
(5) The contesting respondent in this revision petition, namely 18th
respondent, was arrayed as the 26th respondent in the Interlocutory
Application before the Lower Court. He filed a counter affidavit,
intrinsically admitting the revision petitioners herein as the legal
representatives of the deceased Velayudam Chettiar. It is
contended by the 18th respondent herein that in a suit for partition,
the defendants are bound to pay Court fee in order to obtain a
preliminary decree in their favour and therefore, there should be a
prayer. Since the revision petitioners are the legal representatives
of the deceased/2nd defendant under whom they derive title, failed
to seek a preliminary decree by paying the Court fee, it is stated
that the petitioners cannot get a preliminary decree. The 18th
respondent herein further contended that the impleading
CRP.NPD.No.1228/2019
application is barred by principle of res judicata and therefore, the
revision petitioners are not entitled to get themselves impleaded.
(6) A reading of the counter affidavit also indicate that the 18 th
respondent herein treated the Interlocutory Application as one filed
by the petitioners herein for passing of final decree rather than an
application to get themselves impleaded as parties to the suit. It is
also contended by the 18th respondent herein/26th respondent in the
Application that the petitioners' application even if it is treated as
one for passing of a preliminary decree, the application being filed
beyond 12 years, is hopelessly barred by limitation. It is further
stated that the 18th respondent herein has prescribed title by adverse
possession against all parties and that the rights of the petitioners
herein had been extinguished by lapse of time.
(7) The Lower Court however dismissed the application on the ground
that the revision petitioners herein have not proved themselves to
be the legal representatives of the decesed Velayudam Chettiar.
Since some of the respondents denied the status of the 1st petitioner
herein as the wife of Velayudam Chettiar and contended that the
CRP.NPD.No.1228/2019
1st petitioner herein was just living with Velayudam Chettiar, it
appears that they have also objected for impleading the revision
petitioners herein in the suit. The Trial Court did not even consider
the objections raised by the 18th respondent herein/26th respondent
in the Interlocutory Application before the Lower Court. However,
the Trial Court dismissed the Interlocutory Application on the
ground that the petitioners herein have not proved that they are
legally entitled to come on record as the legal representatives of the
deceased Velayudam Chettiar.
(8) In an application filed by the revision petitioners herein under
Order 1 Rule 10 CPC to implead themselves as parties, the Court
has to see whether the parties are entitled to come on record to
represent the deceased so as to protect their interest as legal heirs in
continuation of the deceased. It is at that stage the Court need not
embark on actual proof of their legal status which shall be gone
into at a later point of time.
(9) In the present case, the application filed by the revision petitioners
herein is only to implead themselves as parties so that they can file
CRP.NPD.No.1228/2019
appropriate applications to get their share allotted as legal
representatives of the deceased Velayudam Chettiar. The said
application cannot be dismissed in limini.
(10) As regards the 18th respondent herein/26th respondent in
IA.No.689/2006m he has no issue to recognise the revision
petitioners as the legal representatives of the deceased Velayudam
Chettiar. However, he has pleaded ouster and adverse possession
against the petitioners herein for not getting a preliminary decree
within twelve years. The contention if the 26th respondent in
IA.No.689/2006 who is actually the 18th respondent in this Civil
Revision Petition, cannot be accepted.
(11) Even after passing of preliminary decree, there can be enlargement
of shares or diminishing of shares due to subsequent events.
Therefore, it is always open to the Court to modify preliminary
decree at the request of parties if the circumstances warrant.
Absolutely, there is no bar to pass multiple preliminary decrees
depending upon contingencies that may arise. In the instant case,
the learned counsel for the 18th respondent herein has submitted
CRP.NPD.No.1228/2019
that the revision petitioners cannot be impleaded as parties without
declaration of their share in the suit properties. It is also stated by
the learned counsel for the 18th respondent herein that the revision
petitioners cannot be impleaded as the suit is not pending.
(12) As pointed out earlier, the decree in a partition suit is just a
preliminary decree and the preliminary decree can be altered
depending upon the events that may happen before passing of final
decree. In the present case, it is unfortunate to note that
Velayudam Chettiar died during the pendency of the Appeal before
the Hon'ble Supreme Court and the legal heirs were not impleaded.
Therefore, the revision petitioners cannot be blamed for not getting
themselves to be impleaded when the preliminary decree was
altered by virtue of the judgment of the Apex Court.
(13) The right of revision petitioners, as legal representatives of a
legitimate shares in a partition suit cannot be shut down on mere
technicality, particularly in view of the legal position in respect of
suits for partition. Therefore, this Court, for the reasons stated
above, is unable to sustain the order of the Lower Court passed in
CRP.NPD.No.1228/2019
dismissing the Interlocutory Application filed by the revision
petitioners herein.
(14) In the result, the Civil Revision Petition is allowed setting the
order dated 12.04.2015 made in Ia.No.689/2006 in
OS.No.300/1974 by the learned Principal District Munsif,
Cuddalore.
(15) The petitioners herein has filed CMP.No.7882/2019 to receive the
documents to support their case that they are the legal heirs of the
deceased Velayudam Chettiar. Though the Legal Heirship
Certificate issued by the Tahsildar and other documents are official
records, the said Miscellaneous Petition stands closed with liberty
to the revision petitioners to produce the documents before the
Lower Court and the Trial Court may mark the documents which
will be of some relevance at the time of passing final decree, in
terms of the preliminary decree. If any of the respondents have any
objections, it is open to them to raise their objections and the
Lower Court will also consider if necessary.
CRP.NPD.No.1228/2019
(16) However, since this Court has allowed the Civil Revision Petition,
setting aside the order passed by the Lower Court in
IA.No.689/2006, the Interlocutory Application in IA.No.689/2006
stands allowed and the revision petitioners are directed to be
impleaded as defendants in the suit in OS.No.300/1974. The
revision petitioners can file necessary application for getting their
share declared.
(17) If the revision petitioners herein file an application for passing of
final decree or get themselves impleaded as parties in the final
decree proceedings, it is open to them to do so. However, all other
respondents are entitled to raise their objections with regard to
allotment of shares to the revision petitioners herein. No costs.
16.12.2021
AP
Internet : Yes
To
Principal District Munsif
Cuddalore.
CRP.NPD.No.1228/2019
S.S.SUNDAR, J.,
AP
CRP.NPD.No.1228/2019
16.12.2021
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