Madras High Court
Issac Soundararaj vs Maria Selvaraj ... Plaintiff / ... on 28 July, 2021
S.A.(MD)No.1219 of 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.1219 of 2006
and
M.P.(MD)No.1 of 2006
Issac Soundararaj
represented through his power agent,
Romeela Thomas,
No.7/739, Kamban Street,
Alwar Nagar,
Nagamalai Pudukottai,
Madurai 625 019. ... 3rd Defendant / 3rd Respondent / Appellant
-Vs-
1.Maria Selvaraj ... Plaintiff / Appellant / 1st Respondent
2.Shanmugam
3.Palanivelu ... 1st & 2nd Defendants / 1st & 2nd Respondents /
2nd & 3rd Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree passed in A.S.No.93 of 2005, dated
30.12.2005 on the file of the second Additional Sub Court, Madurai,
reversing the judgment and decree passed in O.S.No.256 of 2001, dated
29.12.2004 on the file of the District Munsif Court, Tirumangalam.
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S.A.(MD)No.1219 of 2006
For Appellant : Mr.V.Meenakshi Sundaram
for Mr.D.Nallathambi
For R1 : Mr.G.Gomathi Sankar
For R2 : exparte
For R3 : died
JUDGMENT
The third defendant in O.S.No.256 of 2001 on the file of the District
Munsif Court, Tirumangalam, is the appellant in this second appeal.
The said suit was filed by the first respondent Maria Selvaraj. The suit was
for partition.
2.According to the plaintiff, the suit property originally belonged to
Kavana Vellaichamy / father of D1 and D2. The suit item along with
another item was brought for sale in execution of the decree in E.P.No.621
of 1959 in S.C.No.141 of 1958 on the file of the District Munsif Court,
Tirumangalam. The item that was brought for sale were purchased by
Chellam Servai on 08.02.1960. Subsequently, Petchiammal mother of
Kavana Vellaichamy filed O.S.No.41 of 1963 on the file of the District
Munsif Court, Tirumangalam on behalf of the minor grand children seeking
declaration of title and for injunction restraining Chellam Servai from
interfering with their possession pursuant to his purchase in execution.
In the said suit, the trial Court gave a finding that Kavanna Vellaichamy did
not borrow for any immoral or illegal purposes and that Chellam Servai's
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S.A.(MD)No.1219 of 2006
purchase and execution will be valid only for 1/6th share and that the
plaintiffs will be entitled to declaration of title to 5/6th share in the suit
properties. Challenging the same, Chellam Servai filed A.S.No.60 of 1964.
The appellate Court, by judgment and decree dated 21.09.1964, partly
allowed the appeal and modified the decree of the trial Court and granted
decree for the plaintiffs in the suit properties for 1/2 share alone.
Challenging the same, Chellam Servai filed S.A.No.1843 of 1965 before the
Madras High Court. It was disposed of on 03.09.1969 by remanding the
suit to the trial Court for effecting partition of the properties into two half
shares and for allotting one half to Petchiammal and the other half to
Chellam Servai. The High Court was of the view that the relief of partition
can be worked out in O.S.No.41 of 1963 itself. It is stated that after such
remand, Petchiammal did not pursue the matter and it appears to have
suffered a natural death. Thereafter, the present appellant Thiru.Issac
Soundararaj had purchased the entire suit property from Shanmugam and
Palanivelu / grand sons of Petchiammal vide sale deed dated 06.12.1976.
Thereafter, the revenue records were also mutated in favour of Issac
Soundararaj and there cannot be any dispute that Issac Soundararaj had
been in possession of the suit property ever since. While so, Chellam
Servai is said to have executed a will dated 04.01.1978 in favour of his
sister Mariammal bequeathing his interest in the suit property. On the
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S.A.(MD)No.1219 of 2006
strength of the said Will, Mariammal filed O.S.No.824 of 1980 before the
District Munsif Court, Tirumangalam seeking the relief of partition. In the
said suit, apart from the appellant herein, Kavana Vellaichamy and his sons
Shanmugam and Palanivelu, were shown as D1 to D.3. In the said suit, the
present suit property figured as item No.2. The suit was dismissed as
against the appellant herein on 24.02.1988 for default. She filed I.A.No.
554 of 1988 for restoration. Since Mariammal had passed away, the present
plaintiff Maria Selvaraj filed I.A.No.622 of 1995 for restoring O.S.No.824
of 1980 as against the appellant herein. I.A.No.622 of 1995 also suffered
dismissal. Thereafter, Maria Selvaraj filed the present suit in O.S.No.256 of
2001 seeking the relief of partition. The suit claim was strongly contested
by the appellant. In the written statement, the execution of the so called
Will by Chellam Servai in favour of Mariammal was specifically denied. It
was further contended that ever since his purchase in the year 1976 from D1
and D2, Issac Soundararaj had been in possession of the suit property in his
capacity as absolute owner and therefore, whatever rights of Maria Selvaraj
if all were there stood extinguished. It was further contended that since the
partition suit filed by Mariammal suffered dismissal for default and the
same could not be restored, the present suit was clearly barred under Order
9 Rule 9 of C.P.C. The plaintiff examined himself as P.W.1 and marked
Ex.A1 to Ex.A4. The power agent of the appellant examined herself as
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S.A.(MD)No.1219 of 2006
D.W.1. Ex.B1 to Ex.B8 were marked. After consideration of the evidence
on record, the trial Court by judgment and decree dated 29.12.2004,
dismissed the suit. Aggrieved by the same, the plaintiff filed A.S.No.93 of
2005 on the file of the II Additional Sub Court, Madurai. By judgment and
decree dated 30.12.2005, the first appellate Court set aside the decision of
the trial Court and granted preliminary decree as prayed for. The plaintiff
was granted half share in the suit property. Questioning the same, this
second appeal came to be filed:-
3.The second appeal was admitted on the following substantial
questions of law:-
“ (I) Whether the lower appellate Court has erred in relying
upon the findings and observation given in the proceedings in
O.S.No.41 of 1963 which was finally dismissed for default and
hence, warrants interference?
(II) When the plaintiff/respondent has not filed the original
Will of Ex.A2 and not examined any attesting witness, whether the
lower appellate Court was right in decreeing the suit of the plaintiff /
first respondent who claims right under the above said Will?
(III) Whether the judgment of the lower appellate Court is to
be interfered with for reversing the well-considered finding of the
trial Court on the issue, whether the suit is barred under Order 9 Rule
9(1) of CPC ?”
4.Heard the learned counsel on either side.
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S.A.(MD)No.1219 of 2006
5.The learned counsel appearing for the appellant submitted that the
mother of the plaintiff filed O.S.No.824 of 1980 seeking the very same
relief now sought for. There is no dispute that it was dismissed as against
the appellant on 24.02.1988. She filed I.A.No.554 of 1988 for restoration.
After her demise, the present plaintiff took steps by filing I.A.No.622 of
1995 and the same was dismissed on merits. The order of dismissal was
marked as Ex.B1 by the appellant. If the plaintiff was aggrieved, he ought
to have filed civil revision petition against the same. Instead of doing so,
he has chosen to file another suit for partition. It was patently not
maintainable. As per Order 9 Rule 9 of C.P.C., when a suit is wholly or
partly dismissed, the plaintiff shall be precluded from filing a fresh suit in
respect of the same cause of action.
6.The learned counsel appearing for the appellant pointed out that a
person approaching the Court with unclean hands must be thrown out at the
threshold itself. In this case, the plaintiff had not whispered anything about
the dismissal of I.A.No.622 of 1995. He also pointed out that the findings
or observations rendered in favour of Chellam Servai in S.A.No.1843 of
1965 arising out of O.S.No.41 of 1963 cannot have any bearing because the
suit eventually came to be dismissed for default on account of non-
prosecution by Petchiammal. The plaintiff''s entire case is anchored on the
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S.A.(MD)No.1219 of 2006
Will said to have been executed by Chellam Servai in favour of Mariammal.
The appellant in his written statement had categorically denied the
execution of the said Will. Therefore, the plaintiff ought to have proved the
same in the manner known to law. Section 68 of the Indian Evidence Act
casts the burden to prove the Will on the propounder. The plaintiff is the
propounder. He did not even mark the original Will. The attestors of the
Will have not been examined. Therefore, the very foundation of the
plaintiff's case stands undermined on account of his failure to prove the suit
Will. The learned counsel placed reliance on the decision reported in AIR
1965 SC 295 (Suraj Rattan Thirani and others Vs. Azamabad Tea Co.ltd.).
The learned counsel called upon this Court to answer the substantial
questions of law by accepting the aforesaid contentions and allow the
second appeal and restore the decision of the trial Court.
7. Per contra, the learned counsel appearing for the respondents
submitted that the judgment and decree passed by the first appellate Court
do not call for any interference.
8. I carefully considered the rival contentions and went through the
evidence on record. The first contention urged by the learned counsel for
the appellant is that the present suit is not maintainable in view of the
dismissal of O.S.No.824 of 1980 as against the plaintiff and the dismissal of
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S.A.(MD)No.1219 of 2006
I.A.622 of 1995 seeking its restoration. Though Order 9 Rule 9 of C.PC.,
may not apply for partition suits, still according to the appellant's counsel, it
is incumbent on the part of the plaintiff to show that cause of action now
projected is different from the previous cause of action.
9.In response to the said contention, the learned counsel appearing
for the first respondent / plaintiff places reliance on the decision reported in
AIR 2003 HP 32 (Asha Sharma Vs. Amar Nath). In the said decision, the
Himachal Pradesh High Court had held that the subsequent suit for
enforcing partition in the face of first suit for the same relief having been
dismissed in default under Order 9 Rule 8 of C.P.C., is not precluded by the
provisions of under Order 9 Rule 9 of C.P.C. To the same effect, is the
decision reported in (2017) 1 CTC 374 (Maria Francis (died) Vs.
M.Varghese @ Maria Varghese). It was held therein that bar under Order 9
Rule 9 of C.P.C., is not applicable where the suit is for partition. That has
been the consistent view of the Madras High Court. The suit for partition
filed by the plaintiff's mother suffered dismissal for default and the efforts
taken by the plaintiff to have the same restored were in vain. This is
evidenced by Ex.B1. Yet in view of the aforesaid decisions, I hold that the
present suit is not barred by Order 9 Rule 9 of C.P.C. Hence, the third
substantial question of law is answered against the appellant.
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S.A.(MD)No.1219 of 2006
10. The next question that arises is whether the plaintiff has proved
Ex.A2-Will dated 04.01.1978. It is true that the plaintiff had not filed the
original Will. He had also not examined any of the attestors. It is equally
true that in the written statement, the appellant herein had categorically
denied the execution of Ex.A2-Will by Chellam Servai in favour of
Mariammal. Now the question is whether the first appellate Court was
justified in coming to the conclusion that the suit-Will had been proved. It
is obvious that Ex.A2-Will dated 04.01.1978 is not being propounded for
the first time. It was already projected in O.S.No.824 of 1980 filed by
Mariammal. The appellant herein was shown as the fourth defendant in the
said suit. Since the original Will was already marked in O.S.No.824 of
1980, certified copy was obtained from the Court record and marked in the
present proceedings as Ex.A2. As pointed out by the learned counsel
appearing for the appellant, it was not a registered Will. But the fact
remains that O.S.No.824 of 1980 pertained to two items. The appellant
Issac Soundararaj was concerned only with the second item in O.S.No.824
of 1980. Preliminary decree was passed in favour of Mariammal on
24.12.1981. In the said suit, it appears that fourth defendant Issac
Soundararaj was originally set exparte and later, it was set aside and again
taken up afresh on 24.02.1988. On the said date, Mariammal's counsel
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S.A.(MD)No.1219 of 2006
reported no instructions. Mariammal was also not present. Therefore, as
against Issac Soundararaj in respect of the second item, the suit came to be
dismissed vide judgment and decree dated 24.02.1988. However, it was
made clear in the very same judgment and decree that in respect of the other
items, the judgment and decree passed against D1 to D3 on 24.02.1988
would very much remain in force.
11. From this single circumstance, I conclude that the suit Will Ex.A2
had been proved by Mariammal in the other suit itself. That was the
argument advanced by the counsel for the present plaintiff before the trial
Court. The trial Court did not reject the said argument. It left the issue
open. The trial Court had given a finding that the suit was barred under
Order 9 Rule 9 of C.P.C., and that is why, it did not go into the issue of
proof of Will.
12. The written statement was filed only by the power agent of the
appellant. During the pendency of the present suit, he had passed away and
his wife Romela Thomas stepped in. The appellant did not enter the
witness box. It was only Romela Thomas who was examined as D.W.1.
Romela Thomas Thomas pleaded complete ignorance of what had actually
happened. She frankly stated that she did not know as to whether Chellam
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S.A.(MD)No.1219 of 2006
Servai had really executed Ex.A2-Will. Only a person who was in the
know of things can raise a plea challenging the execution of Will. Merely
because there has been a plain denial, the Court cannot insist that a Will that
has already been proved should be proved once again. By inferential
reasoning, I conclude that if Mariammal had not proved the suit Will, a
decree would not have been passed on that basis in respect of the first item
in O.S.No.824 of 1980. Since the appellant did not enter the witness box. I
answer the second substantial question of law also against the appellant.
13.More than anything else, let us have a look at the undisputed facts.
The suit property was purchased in toto by Chellam Servai in a Court
auction sale. The judgment-debtor Kavana Vellaichamy had obviously set
up his mother Petchiammal to file a suit for preventing Chellam Servai
from enjoying the fruits of the auction sale. It was held categorically that
Petchiammal will have only half share in the suit property. Even though
Petchiammal filed only a suit for declaration and injunction, the Court
chose to treat it as a partition suit. The High Court vide judgment and
decree dated 03.09.1969 in Second Appeal No.1843 of 1965 remanded the
matter. What was passed by the High Court in S.A.No.1843 of 1965 was a
preliminary decree granting half share for Chellam Servai and half share for
Petchiammal. There is again no dispute that the appellant Issac Soundararaj
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S.A.(MD)No.1219 of 2006
had purchased only from the grand sons of Petchiammal namely D1 and
D2. He might have purchased the entire suit property. But nobody can
dispute that D1 and D2 had only half share in the suit property. When they
knew fully well that they had only half share in the suit property, they still
conveyed the entire suit property in favour of Issac Soundararaj. The
present plaintiff's claim is confined to the half-share of Chellam Servai as
declared by judgment and decree dated 03.09.1969 in S.A.No.1843 of 1965.
If the first appellate Court had not interfered, the judgment and decree made
in S.A.No.1843 of 1965 would have been frustrated. I find no merit in this
appeal.
14.The second appeal is dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
28.07.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The second Additional Sub Court, Madurai,
2.The District Munsif Court, Tirumangalam.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court, Madurai.
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S.A.(MD)No.1219 of 2006
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.(MD)No.1219 of 2006
and
M.P.(MD)No.1 of 2006
28.07.2021
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