Madras High Court
Rajam vs Palayan(Died) on 16 July, 2021
1 S.A.(MD)NO.735 OF 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.735 of 2008
and
M.P.(MD)No.1 of 2012
Rajam ... Appellant/Appellant/
Plaintiff
Vs.
1. Palayan(Died)
2. Vijayan
3. Dhas
4. Mary ... Respondents 1 to 4/
Respondents 2 to 5/
Respondents 2 to 5
5. Selvaraj
6. Mathias ... Respondents 5 & 6/
Respondents 6 & 7/NIL
7. Selvi
8. Rajapaul
9. Jeyapaul
(R-7 to R-9 are brought on record as LRs. of the deceased
1st respondent vide Order dated 16.03.2020 made in
C.M.P.(MD)No.8464 to 8466 of 2019)
Prayer: Second appeal filed under Section 100 of C.P.C., against
the Judgment and Decree dated 26.11.2007 passed in A.S.No.1 of
2004 by the Subordinate Judge, Kuzhithurai, confirming the
Judgment and Decree passed in O.S.No.355 of 1993 dated
29.08.2003 by the Principal District Munsif, Kuzhithurai.
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2 S.A.(MD)NO.735 OF 2008
For Appellant : Ms.J.Anandhavalli
For R-2 & R-3 : Mr.K.N.Thampi
For R-4 : Mr.K.Lingan
For R-7 to R-9 : Mr.C.Godwin
For R-5 & R-6 : No appearance.
R-1 : Died.
JUDGMENT
The appellant herein filed O.S No.355 of 1993 on the file
of the Principal District Munsif, Kuzhithurai seeking partition of
1/10th share in the suit properties.
2.According to her, the suit properties originally belonged
to her grandfather Sankili. Sankili had five sons, namely,
Sankaran, Chithirai, Kochupillai, Chellappan and Palayyan. The
plaintiff and the fifth defendant were born to Chithirai through the
sixth defendant Mariyamma. Following the demise of Chithirai,
Mariyamma got married to Chithirai's brother Kochupillai.
Through that wedlock, two sons D3- Vijayan and D4-Dhas were
born to her. The case of the plaintiff is that she and the fifth
defendant alone are entitled to inherit the estate of their father
Chithirai since their mother got married to Kochupillai.
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3 S.A.(MD)NO.735 OF 2008
3.Defendants 3, 4 and 6 filed a joint written statement
controverting the plaint averments. The first defendant
Chellappan also filed an independent written statement. The
second defendant Palayyan remained ex-parte. During the
pendency of the trial, Mariyamma passed away. The plaintiff
examined herself as P.W.1 and marked Ex.A.1 and Ex.A.2. The
second defendant examined himself as D.W.1. The third defendant
examined himself as D.W.2. Ex.B.1 to Ex.B.21 were marked. At this
stage, the counsel for the plaintiff filed the following statement :
“The property sought to be partitioned are plots allotted
to one Sankili who died leaving behind five sons. They are as
follows:-
Sankili
----------------------------------------------------------------------------------------------------
Sankaran Chithirai Kochupillai Chellappan Palayyan
(died 1/5) (D1)(1/5) (D2)(1/5)
sold to three --------------------- --------------------------------
brothers viz.
Kochupillai, Plff. D5 D6 Vijayan Dhas(D4)
Chellappan 1/15 1/15 1/15 (D3)
and Palayyan
Ex.B.4 & Ex.B.5
One of the sons of Sankili viz. Sankaran sold his 1/5th share to his
three brothers Kochu Pillai, Chellappan and Palayyan. So Kochu
Pillai, Chellappan and Palayyan got 1/3rd of 4/5 share each.
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4 S.A.(MD)NO.735 OF 2008
Chithirai got 1/5 share only. Chithirai died leaving behind two
daughters and a widow. The daughters are plaintiff and 5th
defendant. The widow is 6th defendant. So each heir will get 1/15
share. The widow of Chithirai viz.6th defendant is subsequently
married by Kochu Pillai and defendants 3 and 4 are born to 6th
defendant. Now 6th defendant died and 3 and 4 are recorded as the
heir of 6th defendant as per I.A.No.389/2003. So defendants 3 and
4 are entitled to get 1/15 share of 6th defendant in addition to their
other shares.
The second defendant sold 5 cents to defendants 3 and 4
in item 1 under Ex.B.10 sale deed.
The plaintiff is not a party to Ex.B.12 partition
arrangement and hence she is not bound by it.
Now the following are the shares of parties:-
Parties Share
Plaintiff 1/15th share in item 1 to 3
1st defendant 1/3rd of 4/5th share in all the items
2nd defendant 1/3rd of 4/5 share minus 5 in item No.1 and
1/3rd of 4/5 share in items 2 and 3.
Defendants 3 and 4 1/3rd of 4/5 share plus 1/15 plus 5 cents in
item No.1 and 1/3 of 4/5 share plus 1/15
share in items 3 and 4.
5th defendant 1/15 share in item 1 to 3.
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5 S.A.(MD)NO.735 OF 2008
Partition has to be effected in accordance with the present
possession and enjoyment of the parties inclusive of their
buildings.
27.08.2003. Advocate..”
In view of the aforesaid statement filed by the counsel for the
plaintiff, the trial Court passed the following decree :
“item No.1 to 3, 1/15th share is allotted to
the plaintiff. In all the items, 1/3rd of 4/5 share is
allotted to the 1st defendant. In item No.1, 1/3rd of
4/5 share + 1/15 share + 5 cents and in items 3
and 4, 1/3 of 4/5 share + 1/5 share is allotted to
the 3rd and 4th defendants.”
4.Challenging the said decree and judgment, the plaintiff
filed A.S No.1 of 2004 before the Sub Court, Kuzhithurai. The first
appellate court by the impugned judgment and decree dated
26.11.2007 confirmed the decision of the trial Court and dismissed
the appeal. Questioning the same, this second appeal came to be
filed. The second appeal was admitted on the following substantial
question of law:-
“Whether the Courts below erred in passing
preliminary decree based solely on the statement of
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6 S.A.(MD)NO.735 OF 2008
shares filed by the plaintiff's counsel even though it
suffered from an apparent error?”
5.The learned counsel appearing for the appellant
submitted that the plaintiff ought to have been granted 1/10th
share in the suit items; When Mariyamma was entitled to 1/3 rd
share in Chithirai's estate and when that devolved on the sons
born through Kochupillai, by the very same logic, the plaintiff will
be entitled to 1/4th of what Mariyamma inherited from Kochupillai
also; the counsel for the plaintiff had on his own submitted a
statement; the same was not signed by the plaintiff. Her
submission is that this Court has a duty to render substantial
justice as the plaintiff cannot be bound by such a statement.
6.Per contra, Mr.K.N.Thampi, learned counsel appearing
for respondents 2 and 3 submitted that the trial Court had passed
a consent decree and that it is not appealable. The first appellate
Court had correctly held that when the plaintiff's counsel had
himself filed a statement of shares, and the trial Court had
accepted the same and passed preliminary decree, the same is not
open to challenge. The learned counsel also pointed out that when
Mariyamma passed away, the plaintiff filed I.A.No.389 of 2003 in
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7 S.A.(MD)NO.735 OF 2008
which she had stated that Vijayan, Dhas and Mary alone should be
recorded as her legal heirs. In other words, the plaintiff did not
wish to be recorded as the daughter of Mariyamma. Such a stand
amounts to relinquishment of the share which she might have
claimed through her mother. The learned counsel strongly
submitted that the counsel who appeared for the plaintiff is a well
known and reputed practitioner and that the statement of shares
filed by him was in consonance with the stand already taken by the
plaintiff that she did not want to be recognised as the daughter of
Mariyamma. The learned counsel relied on a catena of decisions in
support of his contention that a counsel has the authority to enter
into compromise on behalf of the party. He drew my attention to
the decisions reported in (1992) 1 SCC 31 (Byram Pestonji
Gariwala V. Union Bank of India), AIR 2003 SC 4596
(Jineshwardas V. Jagrant), (1975) 2 SCC 244 (Monoharbahal
Colliery V. K.N.Mishra), (2010) 5 SCC 104 (Shanti Budhiya Vesta
Patel V. Nirmala Jayprakash Tiwari) and AIR 1982 SC 1249 (State
of Maharashtra V. Ramdas Shrinivas Nayak).
7.Shri.Godwin, learned counsel appearing for respondents
7 to 9 adopted the stand of the learned counsel for R2 and R3.
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8 S.A.(MD)NO.735 OF 2008
8.I carefully considered the rival contentions and went
through the evidence on record. The relationship among the
parties is not in doubt. It is well settled that when a widow re-
marries, she is not disqualified from inheriting what she is
otherwise entitled to on account of her first marriage. Mariyamma
was obviously entitled to 1/3rd share in the estate of Chithirai.
Merely because she married Kochupillai, brother of Chithirai,
Mariyamma cannot be deprived of her 1/3rd share in the estate of
Chithirai.
9.When Mariyamma passed away, the 1/3rd share which
she inherited from Chithirai will devolve in equal shares not only
on the plaintiff Rajam and the fifth defendant Mary but also on
Vijayan and Dhas. The daughters born through Chithirai and the
sons born through Kochupillai are the children of Mariyamma and
hence they will be equally entitled to what was left by her at the
time of her demise. It is also admitted that Mariyamma died
intestate. Therefore, the plaintiff Rajam will be entitled to 1/4th of
what Mariyamma inherited from Chithirai and Kochupillai.
Chithirai and Kochupillai were entitled to 1/5th share each in the
entire estate. Mariyamma was entitled to 2/15th share in the entire
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9 S.A.(MD)NO.735 OF 2008
suit property. If Dhas and Vijayan are each entitled to 1/4th out of
2/15th share of the deceased Mariyamma, then obviously the
plaintiff Rajam will also be entitled to 1/4th of 2/15th share of
Mariyamma. Rajam was already entitled to 1/15th share by virtue
of being a daughter of Chithirai. Adding the shares together (1/15
+ 1/30), the plaintiff would be entitled to 1/10th share in the suit
items.
10.Now the only question that arises for my consideration
is whether the plaintiff's present appeal should be thrown out
merely because her advocate filed a statement of shares agreeing
to receive only 1/15th share. But this statement of shares filed by
her counsel was categorically disowned by the plaintiff. The suit
was filed in the year 1993 and the preliminary decree was passed
only on 29.08.2003. There was obviously no tearing urgency. The
Hon'ble Supreme Court in Byram Pestonji Gariwala v. Union Bank
of India (1992) 1 SCC 31 observed as follows :
“37....it will be prudent for counsel not to
act on implied authority except when warranted by
the exigency of circumstances demanding immediate
adjustment of suit by agreement or compromise and
the signature of the party cannot be obtained
without undue delay. In these days of easier and
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10 S.A.(MD)NO.735 OF 2008
quicker communication, such contingency may
seldom arise. A wise and careful counsel will no
doubt arm himself in advance with the necessary
authority expressed in writing to meet all such
contingencies in order that neither his authority nor
integrity is ever doubted. This essential precaution
will safeguard the personal reputation of counsel as
well as uphold the prestige and dignity of the legal
profession.”
11.Admittedly, the statement of shares filed by the
counsel did not contain the signature of the plaintiff. The
statement called upon the court to allot 1/15th share even though
the plaintiff was entitled to 1/10th share. In such circumstances,
the court ought to bear in mind the mandate set out in Order 23
Rule 3 of CPC. The said provision requires the court to be satisfied
that a suit has been adjusted wholly or in part by any lawful
agreement or compromise before it passed a decree in
accordance therewith. In this case, though the trial court was not
disposing of the matter based on a compromise, still, an
analogical approach must have been adopted. The trial Judge
ought to have satisfied his judicial conscience that the statement
filed by the counsel had the consent of the party. The plaintiff
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11 S.A.(MD)NO.735 OF 2008
could have been asked to appear in person or the counsel could
have been asked to file an affidavit sworn to by the party.
12.Usually, in such circumstances, the plaintiff must file a
review petition before the very same Judge. Instead of filing a
review petition, an appeal was filed. But the fact remains that the
appeal was filed in time i.e., on 29.10.2003. One of the grounds
taken in the appeal memorandum was that the appellant had
neither seen nor signed the document submitted by her counsel.
It was further alleged that her advocate without her consent, had
filed an erroneous statement agreeing to 1/15th share in the suit
properties. When such a categorical contention was taken by the
plaintiff, the first appellate court ought to have disposed of the
appeal at the threshold relegating the plaintiff to move the trial
Court. The appeal filed by the plaintiff was taken up and given a
disposal only on 26.11.2007. If only the first appeal had been
given an early disposal on this ground when it was formally
numbered and admitted, then probably, the plaintiff could have
moved the very same trial judge who passed the preliminary
decree.
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12 S.A.(MD)NO.735 OF 2008
13.In my view, the trial court as well as the first appellate
court erred. For the mistake committed by the Courts, the plaintiff
cannot be deprived of the legitimate share to which the plaintiff is
otherwise entitled. An appeal against a consent decree is not
maintainable. But where it is shown that there has been no
consent, an appeal would certainly lie. Courts cannot go by mere
form. When the appellate court is satisfied that the impugned
decree was not authorised by the consent of the party, it is obliged
to decide the appeal on merits. The substantial question of law is
answered in favour of the appellant. The judgment and decree
passed by the Courts below are modified. The plaintiff is entitled
to 1/10th share in the suit properties. The shares of the other
persons accordingly will get adjusted. I make it clear that the
outcome of this appeal will not amount to casting any aspersion
on the counsel concerned. This second appeal is allowed. No
costs. Consequently, connected miscellaneous petition is closed.
16.07.2021
Index : Yes / No
Internet : Yes/ No
PMU/skm
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13 S.A.(MD)NO.735 OF 2008
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 Subordinate Judge, Kuzhithurai.
2. The Principal District Munsif, Kuzhithurai.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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14 S.A.(MD)NO.735 OF 2008
G.R.SWAMINATHAN, J.
PMU/skm
S.A.(MD)No.735 of 2008
16.07.2021
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