Madras High Court
Banumathy vs Rajasundaram @ Sundarraja ... on 19 January, 2021
CRP.PD.Nos.1606 of 2013 & 229 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.01.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.PD.Nos.1606 of 2013 and 229 of 2013 &
MP.No.1 of 2013
CRP.PD.No.1606 of 2013
Banumathy ..Petitioner
Vs.
1.Rajasundaram @ Sundarraja Reddiar(deceased)
2.Vanaja @ Shanthi
3.Jayanthi @ Vasanthi
4.Aruljothi
5.Kanaga Mahalakshmi
6.Nagaraj
7.Saraswathi
8.Padma
9.Vasu
10.Gopalakrishna Reddiar
11.Padmalochani
12.Muthialu
13.Vignesh
14.Sarojini
15.Brinda
16.Meera @ Maragatham
17.Nalini
18.Lakshmi ..Respondents
(RR16 to 18 brought on record as LRs
of deceased 1st respondent vide order
of Court dated 14.06.2017, by KKSJ,
made in CMP 8039/2017 to 8041/2017
in CRP.No.1606/2013)
1/12
https://www.mhc.tn.gov.in/judis/
CRP.PD.Nos.1606 of 2013 & 229 of 2013
PRAYER:
The Civil Revision Petition is filed under Article 227 of the
Constitution of India to set aside the order dated 14.12.2012 made in
IA.No.642 of 2012 in O.S.No.66 of 2010 on the file of the II Additional
District Court, Puducherry.
For Petitioner : Mr.Sam Houstan Jayaraj
For Respondents
R1 : Died(steps taken)
For R2 : Mr.I.Abas Mohamed Abdullah
R3 to R14 : Notice served
For R15 : Mr.T.R.Rajagopalan,
Senior Counsel
for Mr.T.R.Rajaraman
R16 to R18 : Mr.T.S.Baskaran
CRP.PD.No.229 of 2013
Brinda ..Petitioner
Vs.
1.Rajasundaram @ Sundarraja Reddiar(deceased)
2.Vanaja @ Shanthi
3.Jayanthi @ Vasanthi
4.Aruljothi
5.Kanaga Mahalakshmi
6.Nagaraj
7.Saraswathi
8.Padma
9.Vasu
10.Gopalakrishna Reddiar
11.Padmalochani
12.Muthialu
13.Vignesh
14.Sarojini
15.Banumathy
16.Meera @ Maragatham
2/12
https://www.mhc.tn.gov.in/judis/
CRP.PD.Nos.1606 of 2013 & 229 of 2013
17.Nalini
18.Lakshmi ..Respondents
(RR16 to 18 brought on record as LRs
of deceased 1st respondent vide order
of Court dated 27.01.2016,
made in MP 1/2015
in CRP.No.229/2013)
PRAYER:
The Civil Revision Petition is filed under Article 227 of the
Constitution of India against the fair and decreetal order dated
16.10.2012 made in I.A.No.506 of 2012 in O.S.No.66 of 2010 on the
file of the II Additional District Judge, Pondicherry.
For Petitioner : Mr.T.R.Rajagopalan,
Senior Counsel
for Mr.T.R.Rajaraman
For Respondents
R1 : Died
R2 to R14 : Notice served
For R15 : Mr.Sam Jayaraj Houstan
for M/s.Sarvabhauman Associates
for Mr.T.R.Rajaraman
R16 to R18 : Mr.T.S.Baskaran
ORDER
These civil revision petitions are filed to set aside the order dated
14.12.2012 made in O.S.No.66 of 2010 on the file of the II Additional District
Court, Puducherry and against the fair and decreetal order dated 16.10.2012
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CRP.PD.Nos.1606 of 2013 & 229 of 2013
made in I.A.No.506 of 2012 in O.S.No.66 of 2010 on the file of the II Additional
District Judge, Pondicherry.
2. Both the petitioners are 14th and 15th defendant in the suit filed
by the first respondent herein for partition. After examining PW1, the
petitioners filed petition to implead the petitioners as defendants in the main
suit since they purchased some items of the suit properties. Thereafter they
have been impleaded as 14th and 15th defendants in the suit and filed their
written statements. Immediately they filed petition to reject the plaint under
Order VII Rule 11(b) and (d) of CPC. Both the petitions were dismissed by the
trial court for the reason that the ground raised for rejection of plaint are not
covered with the Order VII Rule 11 of CPC. The suit is in part heard stage. This
Court by order dated 23.08.2011 has already directed the trial court to dispose
of the suit within a period of four months. Therefore, the petition for
rejection of plaint is unnecessary at this stage and dismissed.
3. Mr.T.R.Rajagopalan, the learned Senior Counsel appearing for the
petitioner in CRP.PD.No.229 of 2013 submitted that the plaintiff filed suit for
partition of suit properties belong to his father and his mother has no right or
title or interest over the same. The plaintiff suppressed the fact that the suit
properties were already declared in favour of the mother of the plaintiff in
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CRP.PD.Nos.1606 of 2013 & 229 of 2013
OS.No.370 of 1984 by the judgment and decree dated 06.08.1984. In fact, the
plaintiff was also party in the said suit and appeared through his counsel and
he conceded to the title of his mother. On the strength of the decree of
declaration most of the suit properties were settled to all her heirs including
the plaintiff by way of settlement deed and also Will. While being so, the
plaintiff failed to challenge the Will executed by his mother. Thereafter, the
other defendants have sold out some of the suit properties in favour of the
14th and 15th defendants by the registered sale deed and as such the suit
itself is bad for not seeking the relief of declaration declaring that the sale
deed as well as the Will are null and void. Therefore, without the prayer of
declaration and recovery of possession, the plaintiff cannot institute the suit
for partition alone.
3.1 He further submitted that the trial court dismissed the petition
only for the reason that this Court already directed the trial court to complete
the trial within a stipulated time. When it being so, the interlocutory
application cannot be entertained. In fact the petitioners were impleaded as
14th and 15th defendants in the suit only on the application filed by the
plaintiff. Even before the said application this Court directed the trial court
to complete the trial. Therefore, the petitioners were not parties to the suit
at the time of direction issued by this Court. After filing written statement on
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CRP.PD.Nos.1606 of 2013 & 229 of 2013
24.07.2012, immediately on 28.08.2012, the petitioner filed petition to reject
the plaint.
4. Mr.Sam Houstan Jayaraj, the learned counsel for the petitioner in
CRP.PD.No.1606 of 2013 added further submission made by the learned Senior
Counsel, the petitioner is the 14th defendant in the suit filed by the plaintiff.
The suit properties were already settled by the plaintiff's father by the
registered settlement deed dated 21.10.1978 in favour of his wife i.e. the
mother of the plaintiff. Thereafter, in respect of some of the properties were
partitioned by the plaintiff's father and his sons by the partition deed
09.07.1980. The mother of the plaintiff filed suit in OS.No.370 of 1984 for
declaration declaring some of the suit properties as against own sons including
the plaintiff and the same was decreed by the judgment and decree dated
06.08.1984. On the strength of the declaration decree passed in OS.No.370 of
1984 some of the suit properties were settled by his mother in favour of his
brother by the registered settlement deed dated 04.02.1999. In respect of
some of the other suit properties are concerned, his mother settled in favour
of other sisters by the settlement deed dated 29.11.2000 and 01.12.2000.
Remaining property bequeathed by the Will dated 25.10.2006 in favour of
another son. Some of the properties also sold out by the sale deed dated
05.03.2009 in favour of her own son. While being so, by the sale deed dated
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CRP.PD.Nos.1606 of 2013 & 229 of 2013
31.03.2010, the petitioner purchased one item of the suit properties from
sister of the plaintiff herein. Likewise, the petitioner in CRP.No.229 of 2013
purchased the suit property by registered sale deed dated 31.03.2010 from one
of the brother of the plaintiff herein. Another property also purchased by the
petitioner by the registered sale deed dated 02.06.2010. Therefore almost
entire suit property have been encumbered by the decree of declaration,
settlement deed, Will and sale deeds. In fact, the plaintiff had full knowledge
about those deeds. He claimed properties for partition as if all the properties
owned by his father. Therefore, there is absolutely no cause of action to file
suit for partition and he suppressed the above fact and filed suit for partition.
As such the suit itself is liable to be rejected.
5. Per contra, Mr.T.S.Baskaran, the learned counsel for the
plaintiff/ first respondent submitted that any of the grounds raised by the
petitioners are not attracted the provisions under Order VII Rule 11 of CPC.
Even according to the petitioners, some of the properties were sold out and
settled in favour of others and as such partition has to be determined with
respect to entire estate left by the deceased father and not in respect of
certain items. The plaintiff did not aware of the judgment and decree passed
in OS.No.370 of 1984 and only after filing the suit, he came to understand from
the pleading of the defendants and he also had taken steps to cancel the said
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CRP.PD.Nos.1606 of 2013 & 229 of 2013
judgment and decree in the manner known to law. In fact the suit filed by one
of the brother for partition in O.S.No.56 of 2010. The earlier suit in O.S.No.370
of 1984 was suppressed by all the defendants in order to defraud the plaintiff.
Therefore, the trial court rightly dismissed the petition since the ground raised
by the petitioners are not covered under Order VII Rule 11 of CPC to reject the
plaint and further stated that the parties can raise all contentions during the
trial and they are at liberty to examine the concerned witnesses and file the
relevant documents.
6. Heard, Mr.T.R.Rajagopalan, the learned Senior Counsel appearing
for the petitioner in CRP.PD.No.229 of 2013, Mr.Sam Houstan Jayaraj, the
learned counsel for the petitioner in CRP.PD.No.1606 of 2013 and
Mr.T.S.Baskaran, the learned counsel for the plaintiff/ first respondent.
7. The petitioners are defendants 14 an 15 in the suit filed by the
first respondent herein for partition. After filing the suit for partition, the first
respondent filed petition to implead the petitioners and another as defendants
in the main suit, since the plaintiff had knowledge about the purchase only
after filing the suit. After impleading the petitioners as defendants 14 and 15
in the main suit they filed written statement on 10.09.2012 and 24.07.2012
respectively. Thereafter they filed petition to reject the plaint on various
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CRP.PD.Nos.1606 of 2013 & 229 of 2013
grounds. The 14th defendant marked Ex.P1 to P24. On perusal of documents
revealed that some of the suit properties were settled in favour of the mother
of the plaintiff by his father. Thereafter some of the properties were
partitioned among the brothers and his father by the partition deed dated
09.07.1980. On the strength of the settlement deed, the mother of the
plaintiff also filed suit for declaration in OS.No.370 of 1984 and the same was
decreed by the judgment and decree dated 06.08.1984. The plaintiff is also
one of the parties in the said suit, he filed vakalat and conceded to the prayer
sought for by his mother. Thereafter the mother of the plaintiff settled some
of the suit properties in favour of one of the brother of the plaintiff by the
registered settlement deed dated 04.02.1999 and 29.11.2000. On the strength
of the said settlement deed, some of the properties again settled by one of the
brother namely Gopalakrishnan in favour of his wife Sarojini. Further by the
Will dated 25.10.2006 mother of the plaintiff bequeathed some of the
properties in favour of the plaintiffs bother. In turn, on the strength of the
settlement deed, the Sarojini namely wife of the Gopalakrishnan sold out the
suit property in favour of the petitioner by the sale deed dated 31.03.2010 and
02.06.2010. In respect of one item of the property by the sale deed dated
31.03.2010, the petitioner in CRP.No.229 of 2013 purchased from the said
Gopalakrishnan namely brother of the plaintiff herein. The trial court
dismissed the petition only on the ground that the grounds raised for rejection
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CRP.PD.Nos.1606 of 2013 & 229 of 2013
of plaint are not covered under Order VII Rule 11 of CPC. Further this Court by
order dated 23.08.2011, directed the trial court to dispose of the main suit
within a period of four months as such interlocutory applications cannot be
entertained and the present petition for rejection of plaint is unnecessary at
this stage.
8. Though the trial court marked the above said documents as Ex.P1
to P24 did not even looked into and there is absolutely no discussion about the
same. Though the trial court observed that the petitioners can raise all the
contentions during the trial and they are at liberty to file relating documents
by examining the witnesses, the trial court ought to have examined those
documents which were marked by the petitioners as Ex.P1 to P24 and
discussed about the same. Though the trial court cannot looked into in respect
of facts, the trial court can be considered the legal issues raised by the
petitioners in respect of abuse of process of law and suppression of facts.
9. In view of the above discussion, both the civil revision petitions
are allowed and the order dated 14.12.2012 made in IA.No.642 of 2012
in O.S.No.66 of 2010 on the file of the II Additional District Court,
Puducherry and the order dated 16.10.2012 made in I.A.No.506 of
2012 in O.S.No.66 of 2010 on the file of the II Additional District
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CRP.PD.Nos.1606 of 2013 & 229 of 2013
Judge, Pondicherry are set aside. Both the petitions in IA.No.642 of 2012 and
IA.No.506 of 2012 are remanded back to trail court for fresh consideration to
pass orders on merits and in accordance with law within a period of four weeks
from the date of receipt of copy of this order. Consequently, connected
miscellaneous petition is closed. No order as to costs.
19.01.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
lok
To
The II Additional District Court,
Puducherry.
https://www.mhc.tn.gov.in/judis/
CRP.PD.Nos.1606 of 2013 & 229 of 2013
G.K.ILANTHIRAIYAN,J.
lok
CRP.PD.Nos.1606 of 2013 and 229 of 2013
19.01.2021
https://www.mhc.tn.gov.in/judis/
