Madras High Court
Maria Josphine vs Maria John Patros on 19 February, 2021
Cross Objection (MD) No.14 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.02.2021
CORAM
THE HONOURABLE MRS. JUSTICE NISHA BANU
Cross Objection (MD) No.14 of 2017
in
S.A.(MD).No.282 of 2014
1.Maria Josphine
2.John Mary(Died) ...Appellants in Cross Appeal
/ Respondents 1 & 2
(Memo in USR No.14667 dated 09.11.2020 is recorded as cross objection
insofar as the second appellant is concerned is not pressed vide Court order
dated 09.11.2020 made in Cros.Obj.(MD).No.14 of 2017 in S.A.(MD).No.282
of 2014
Vs.
1.Maria John Patros
2.Maria Alexander ... Respondents 1 & 2 in Cross Appeal
/ Appellants
3.Kurusu Antony (Died) ...3rd Respondent in Cross Appeal /
3rd Respondent
4.Mary Vasantha
5.Jessy Flora ... Respondents 4 and 5 in Cross Appeal /
Respondents 4 & 5
1/10
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Cross Objection (MD) No.14 of 2017
6.George Edwin ...Respondent
(Respondent No.6 is brought on record as legal representatives of the deceased
third respondent vide order of this Court dated 03.10.2019 made in C.M.P.
(MD).Nos.2058 to 2060 of 2018 in Cros.Obj.(MD).No.14 of 2017)
PRAYER: Cross Objection filed under Order XLI, Rule 22 r/w Section 96(1) &
(2) C.P.C., against the judgment and decree, dated 31.01.2011 passed by the
learned Principal Subordinate Judge, Nagercoil in A.S.No.14 of 2010 partly
reversing the judgment and decree of I Additional District Munsif, Nagercoil,
dated 17.12.2009 in O.S.No.232 of 2005.
For Appellant No.1 ... Mr.V.Meenakshi Sundaram
Appellant No.2 ... Died
For R-1, R-2, R-4
R-5 ... No Appearance
For R-3 ... Died
JUDGMENT
This Cross Objection Appeal has been filed as against the judgment
and decree, dated 31.01.2011 passed by the learned Principal Subordinate
Judge, Nagercoil made in A.S.No.14 of 2010, partly reversing the judgment and
decree of the learned I Additional District Munsif, Nagercoil, dated 17.12.2009
made in O.S.No.232 of 2005.
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Cross Objection (MD) No.14 of 2017
2. Originally, the suit has been filed by the plaintiffs claiming 2/5th
share in the suit schedule property The first schedule property comprised about
39.5 cents and the second schedule property comprised about 1 acre 3 cents.
The plaintiffs and the defendants are the children of one Vargheeseammal. The
suit property originally owned by the said Vargheeseammal. The father of the
plaintiffs died on 07.03.1978 and their mother, namely, Vargheeseammal died on
04.03.1981. After the death of their mother, the plaintiffs and the defendants are
entitled to the suit properties. Despite the request made by the plaintiffs for the
partition, the first defendant was not amenable there. Therefore, the defendant
Nos.2 and 3 had filed a suit in O.S.No.29 of 1998. Later, the suit was settled
out of the Court between the defendant Nos.2 and 3 without knowledge of the
plaintiffs. Hence, the suit for partition.
3. The defendants took a stand that there was an oral family
arrangement carried out between the plaintiffs and the defendants in sharing the
properties. The defendants were allotted to the immovable properties and the
plaintiffs were allotted to the movable properties. A memo of settlement in
O.S.No.337 of 2004 was also accepted by the plaintiffs' counsel.
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Cross Objection (MD) No.14 of 2017
4. The first defendant also denied the plaintiffs' claim and the first
defendant took a stand that the suit is barred by principles res judicata. The
fourth defendant has filed a written statement to the effect that the first
defendant has executed a gift deed on 21.08.1986 in favour of the fourth and
fifth defendants to an extent of 34 cents in the second schedule property. All the
revenue records stood in the name of the fourth and fifth defendants and the
plaintiffs and the defendant Nos.2 and 3 are also having knowledge about the
execution of gift deed in favour of fourth and fifth defendants. The fourth and
fifth defendants are in possession of the property. The plaintiffs are also aware
of the above documents. Hence there is estoppel in questioning the same.
5. Based on the above materials, the trial Court has framed as many
as two issues.
6. During trial, on the side of the plaintiffs, P.W.1 and P.W.2 were
examined and Ex.A.1 to Ex.A.3 were marked. On the side of the defendants,
D.W.1 to D.W.3 were examined and Ex.B.1 to Ex.B.19 were marked. Ex.C.1
was marked as Court document.
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Cross Objection (MD) No.14 of 2017
7. The trial Court granted a decree in entirety and passed a
preliminary decree. As against which, the second and third defendants have
filed an appeal in A.S.No.10 of 2010 before the Principal Sub Court, Nagercoil
and the first defendant has also filed an another Appeal in A.S.No.14 of 2010
before the Principal Sub-Court, Nagercoil. The appeal filed by the defendant
Nos.2 and 3 was dismissed, whereas, the appeal filed by the first defendant was
allowed in part in respect of Ex.B.1 and Ex.B.2/ Settlement Deed relating to the
Second Schedule property. As against the above judgments, the second and
third defendants have preferred an appeal in S.A.(MD).No.282 of 2014 against
the dis-allowed portion. Similarly, the defendant Nos.2 and 3 preferred an
another appeal in S.A.(MD).No.916 of 2011 as against the dismissal of their
appeal viz., A.S.No.10 of 2010. The plaintiffs have filed a Cross Objection in
S.A.(MD).No.282 of 2011 challenging the judgment of the First Appellate Court
in respect of the portion of the Second Schedule Property,
8. When the matter is pending before this Court, the above said
appeals filed by the defendant Nos.2 and 3 were dismissed for default on
21.11.2019 and the Cross Objection Appeal remain pending.
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Cross Objection (MD) No.14 of 2017
9. The following substantial question of law has been framed by
this Court in the Cross Objection.
“Is it necessary to seek a declaration to cancel the document,
when the parties, who have right or interest in the properties, are
not party to the documents?”
10.. A memo was filed before this Court. The second appellant in
the Cross Objection also died on 03.02.2020. The legal heirs of the second
appellant are not proceeded with the litigation pending before this Court. Only
the first plaintiff / cross objector alone is contesting the appeal and the said
memo is taken on record.
11. Accordingly, the Cross Objection is dismissed as abated as
against the second cross objector.
12. In respect of the merits of the other aspects, it is contended by
the learned counsel appearing for the first appellant / cross objector that
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Cross Objection (MD) No.14 of 2017
admittedly the properties were owned by the mother of the plaintiffs and the
defendants. Though oral partition has been pleaded, it has not established. The
first Appellate Court has relied upon the documents viz., Ex.B1 and Ex.B.2 and
disallowed the portion in respect of the extent covered under Ex.B.1 and Ex.B.2.
As contended, the properties are not partitioned. No portion has been settled in
favour of the fourth and fifth defendants by the first defendant. Hence, such
settlement will not bind the cross objector, since they are not a party to the
documents.
13. In the light of the above submissions, as rightly contended by
the learned counsel for the cross objector that the properties originally owned by
the mother of the plaintiffs. After the death of the legal heirs, though oral
partition has not been established, there was a settlement deed. The defendant
Nos.2 and 3 took a stand that they have settled the matter in a suit already
instituted by the parties. It is to be noted that originally the suit has been filed
by the defendant Nos.2 and 3 for claiming partition and they filed a memo
themselves.
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Cross Objection (MD) No.14 of 2017
14. In view of the above, the matter has been settled out of the
Court in which the plaintiffs are not parties and it has been considered by the
trial Court. Therefore, mere some arrangements by the defendant Nos.2 and 3
will not bind the plaintiffs. The settlement of the property by one of the co-
sharer with a specific portion will not bind the plaintiffs. Such settlement is also
not possible in common properties. Such view of the matter, the settlement
deeds viz., Ex.B.1 and Ex.B.2 are not binding on the plaintiffs. It is not the
case of the defendants or settlees that the plaintiffs are aware of the settlement
from the very beginning.
15. It is seen from the evidence viz., D.W.1, D.W.2 and D.W.3 that
the plaintiffs are not aware of the settlement and the settlement was executed
only by the first defendant claiming to be the owner of the property. Such view
of the matter, the settlement deeds consequently will not bind the plaintiffs.
Accordingly the First Appellate Court excluding the right of the plaintiffs to
claim a share in the property which covered under the Ex.B.1 and Ex.B.2 is not
proper appreciation of law and evidence.
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Cross Objection (MD) No.14 of 2017
16. Accordingly, the first plaintiff / cross objector is entitled to 1/5th
share in respect of the extent covered under the documents viz., Ex.B.1 and
Ex.B2 namely 34 cents in the second schedule property. In respect of the other
aspects, the judgment and decree of the Courts below is confirmed and the
Cross Objection is dismissed as abated as against the second Cross Objector.
17. In the result, the Cross Objection stands disposed of. No costs.
Internet : Yes/No 19.02.2021
Index : Yes/No
tsg
To
1.The Principal Subordinate Judge, Nagercoil.
2.The I Additional District Munsif, Nagercoil,
2.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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Cross Objection (MD) No.14 of 2017
N.SATHISH KUMAR, J
tsg
Judgment made in
Cross Objection (MD) No.14 of 2017
in
S.A.(MD).No.282 of 2014
19.02.2021
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