V.Arumugam @ Sundaramurthy vs V.Vimalavathy
2021 Latest Caselaw 20757 Mad

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              Dated     :     08.10.2021

                                                      CORAM

                                    THE HONOURABLE Ms. JUSTICE P.T. ASHA

                                               A.S.No.281 of 2014



                     1.V.Arumugam @ Sundaramurthy

                     2.Nagammal

                     3.Saroja                                              ...Appellants

                                                       Vs.
                     1.V.Vimalavathy

                     2.P.Kalivaradhan

                     3.Thamizhselvan

                     4.Pugazhendi

                     5.Vetriselvi

                     6.Balaji

                     7.P.Karthikeyan

                     8.K.Loganathan                                        ...Respondents

                     1/19

https://www.mhc.tn.gov.in/judis
                     Prayer: Appeal Suit filed under Section 96 of the Code of Civil
                     Procedure against the Judgment and Decree dated 29.10.2013 made in
                     O.S.No.10 of 2012 on the file of the II Additional District Judge,
                     Pondicherry.


                                        For Appellants          :     Mr.S.Mahimai Raj

                                        For Respondents 1 to 7 :      Mr.A.Muthukumar

                                        For Respondent 8        :     No Appearance


                                                         JUDGMENT

The unsuccessful plaintiffs in a suit for partition are the

appellants before this Court. The suit appears to be a third suit filed

in respect of the very same properties. The facts necessary for

disposing of the instant appeal are set out herein below.

2. The properties which are the subject matter of the instant suit

originally belonged to one Iyyakannu Kounder. The said Iyyakannu

Kounder had seven sons, namely, Palanisamy Kounder, Perumal

https://www.mhc.tn.gov.in/judis Kounder, Varadarasu Kounder, Kaliaperumal Kounder, Krishnan

Kounder, Sengani Kounder and another son whose name is not set

out.

3. The dispute in this suit is inter se between the legal heirs of

Varadarasu Kounder. Varadarasu Kounder had two sons and two

daughters, namely, Purushothaman @ Kanniappan, Arumugam @

Sundaramurthy, Lakshmi and Nagammal. The suit has been filed by

Arumugam, Nagammal and Saroja D/o Lakshmi against the legal heirs

of Purushothaman.

4. It is their case that the suit properties belonged to their father

Varadarasu Kounder, who died intestate and on his death each of his

children became entitled to his estate. The plaintiffs would further

state that their father had received his share in the ancestral property

left by his father Iyyakannu Kounder and had been in possession and

enjoyment of the suit property after a partition had been effected

https://www.mhc.tn.gov.in/judis between him and his brothers.

5. It is the case of the plaintiffs that some of the properties had

been exclusively alloted to the said Varadarasu Kounder and in some

other properties he was given a undivided share. Therefore, in respect

of some of the properties he had a joint patta, whereas, in other

properties he enjoyed an exclusive patta. The properties acquired as

his share in the ancestral property are the suit properties.

6. The plaintiffs would contend that the properties that were

purchased after the partition entered into between Varadarasu

Kounder and his brothers were purchased in the name of deceased

Purushothaman Kounder, the father of defendants 2 to 7 and the

husband of the 1st defendant, he being the eldest male member of the

family. The plaintiffs would contend that there was no partition

between the plaintiffs and Purushothaman Kounder and all of them

were living together and enjoying a common mess along with their

https://www.mhc.tn.gov.in/judis father.

7. The plaintiffs would contend that the properties purchased in

the name of the said Purushothaman Kounder were acquired through

the joint labour and efforts of all the members of the family of

Varadarasu Kounder and the income from the ancestral property had

been used for the acquisition of the property in the name of the 1st

defendant.

8. It is the case of the plaintiffs that after the death of

Varadarasu Kounder on 18.04.1986, Purushothaman Kounder started

behaving and conducting himself in a manner, which seriously

impeded the joint enjoyment of the properties by sharers. The

plaintiffs would therefore submit that this prompted the 1st plaintiff

along with his sister the 2nd plaintiff and Lakshmi, the mother of the

3rd plaintiff to file a suit O.S.No.133 of 1992 on the file of the I

Additional Subordinate Court, Puducherry, for a partition of the

https://www.mhc.tn.gov.in/judis ancestral properties as well as the properties purchased in the name of

the said Purushothaman Kounder. Pending the proceedings, the said

Lakshmi died and her legal heir, namely, the 3rd plaintiff was brought

on record as the 4th plaintiff and the son as the 4th defendant. The 4th

defendant was also the son-in-law of Purushothaman Kounder.

9. In the suit O.S.No.133 of 1992, the plaintiffs had prayed for a

partition of their 1/4th share each in the suit A, B and C schedule

properties and also to make provision for paying the mortgage debt

due to the 2nd defendant.

10. After the Trial, the learned I Additional Subordinate Judge,

Puducherry, passed a preliminary decree on 20.01.2006. The decree

held that each of the children of the Varadarasu Kounder was entitled

to a 1/4th share in the properties except for Item Nos.1 to 3 and 4 (a) of

the A-Schedule property. The plaintiffs would submit that as against

the said Judgement and Decree, the legal heirs of Purushothaman

https://www.mhc.tn.gov.in/judis Kounder and the 3rd defendant in the said suit had filed an appeal in

A.S.No.307 of 2006 before the II Additional District Judge,

Puducherry. This appeal came to be dismissed on 22.12.2009.

11. The plaintiffs would submit that as regards Item Nos.1 to 3

and 4 (a) of the A-Schedule property in the suit O.S.No.133 of 1992,

Purushothaman Kounder had pleaded that his father Varadarasu

Kounder was one among the seven sons born to Iyyakannu Kounder

and since Purushothaman Kounder had purchased 1/7 th share of his

paternal uncle Sengeni Kounder he had filed O.S.No.484 of 1978 for

partition before the I Additional District Munsif, Puducherry.

Thereafter, the learned I Additional Subordinate Judge, Puducherry

had while passing a decree in O.S.No.133 of 1992, held that Items

Nos.1 to 3 and 4 (a) of the A-Schedule property could not be

partitioned as it had to await the result of the suit O.S.No.484 of 1978.

12. The plaintiffs would further contend that Purushothaman

https://www.mhc.tn.gov.in/judis Kounder had obtained preliminary decree in O.S.No.484 of 1978 and

had filed final decree proceedings in I.A.No.717 of 2006. However,

he allowed the same to be dismissed for default on 09.04.2007. The

plaintiffs would submit that they had approached the said

Purushothaman Kounder and defendants 1 to 7 to arrive at an

amicable partition with reference to the properties described as Item

Nos.1 to 4 in the suit property which did not work out. They would

submit that Item Nos.5 and 6 are properties that have been left out in

the earlier suit for partition. The plaintiffs would therefore submit

that it is in this backdrop that they have come forward with the

present suit for partition of those items of properties that had been left

out and those properties in respect of which no decree had been

granted in the earlier suit O.S.No.133 of 1992.

13. The 2nd defendant had filed a written statement, which is

adopted by defendants 1 and 3 to 7. In the written statement, the 2 nd

defendant had denied the claim of the plaintiffs that the properties had

https://www.mhc.tn.gov.in/judis been acquired in the name of Purushothaman Kounder by using the

income from the ancestral property. They would submit that the

properties purchased in the name of their father Purushothaman

Kounder was only from out of his self earnings and the contention that

the properties had been purchased through joint labour and efforts of

other members of the family of Varadarasu Kounder was totally

incorrect.

14. The defendants would submit that the properties purchased

in the name of Purushothaman Kounder were his exclusive properties,

in which the plaintiffs did not have any right. They had also taken out

a plea that the suit was barred by principle of res judicata as these

properties were also the subject matter of the suit for partition

instituted earlier. They had also taken a plea of non-joinder of

necessary parties, since the other legal heirs of Iyyakannu Kounder

had not been impleaded as parties in this suit.

https://www.mhc.tn.gov.in/judis

15. The learned II Additional District Judge, Pondicherry on

perusing the records, pleadings and evidence had framed the following

issues:

“1. Whether the plaintiffs 1 and 2 are entitled to

1/4th share and plaintiff 3 and defendant No. 8 are entitled

to 1/4th share in the scheduled properties?

2. Whether defendants 1 to 7 are entitled to render

accounts of the income from the suit properties from 1990

onwards?

3. Whether suit is barred by resjudicata?

4. Whether the suit is bad for non-joinder of

necessary parties?

5. What are the other reliefs, plaintiffs are

entitled?”

16. The 1st plaintiff had examined himself as P.W.1 and marked

Ex.A.1 to Ex.A.3. The defendants did not choose to cross examine the

https://www.mhc.tn.gov.in/judis plaintiffs or enter the box to give evidence. Ultimately, the learned

Judge had dismissed the suit on the ground that the suit was barred by

res judicata and for non-joinder of necessary parties.

17. The plaintiffs have challenged this Judgement and Decree by

way of this appeal.

18. The point for consideration that arises in this appeal is

“Whether the suit is barred by res judicata as well as non-joinder of

necessary parties?”

19. Mr.S.Mahimai Raj, learned counsel appearing on behalf of

the plaintiffs / appellants would strenuously contend that in the earlier

proceedings, the said Purushothaman Kounder was the 1st defendant

and he had admitted that the plaintiffs were entitled to a share in the

properties belonging to Varadarasu Kounder. He had as D.W.1

admitted as follows, “It is also true that we are entitled to equal

https://www.mhc.tn.gov.in/judis shares in the ancestral properties i.e., the 'A' Schedule of properties”.

The learned counsel would submit that this clear and categoric

admission was enough to decree the suit. The learned counsel would

submit that the right to file a suit for partition has been recognised by

this Court in the Judgement and Decree in S.A.No.926 of 1991,

wherein, the Court observed that Purushothaman Kounder had right to

file a suit for partition as he had purchased a share from defendants 1

to 4 in the suit O.S.No.484 of 1978.

20. The learned counsel would further submit that in the earlier

suit O.S.No.133 of 1992, there is a clear finding that the plaintiffs are

entitled to a 1/4th share in the suit property. He would further submit

that, since the said Purushothaman Kounder had allowed the final

decree proceedings to be dismissed for default, the plaintiffs with a

view to protect their right have come forward with the instant suit.

21. Per contra, Mr.A.Muthukumar, learned counsel appearing

https://www.mhc.tn.gov.in/judis on behalf of the defendants / respondents would submit that this suit

is clearly barred by principles of res judicata, since in the earlier suit

O.S.No.133 of 1992, the learned Judge has clearly held that the

plaintiffs herein were entitled to a share in the suit A, B and C therein

but had not granted partition of their 1/4th share in respect of the suit

schedule property Item Nos.1 to 3 and 4 (a) of the A-schedule property

therein. Item No.1 to 3 and 4 (a) of the A-Schedule property in the

suit O.S.No.133 of 1992 are the very same properties covered under

the instant suit.

22. The learned counsel would submit that the relief for

partition was not granted in respect of these items of property on the

ground that there was an earlier comprehensive suit O.S.No.484 of

1978, which had been filed by the said Purushothaman Kounder for a

partition of the ancestral properties. These properties being the

subject matter of the suit O.S.No.484 of 1978 also, the learned Judge

had given the said finding.

https://www.mhc.tn.gov.in/judis

23. The learned counsel would submit that the plaintiffs have

not come forward with any subsequent evidence, which would give

them a right to file this suit for the very same relief which has been

turned down in the earlier round on the ground that it had to await

result of the final decree in the suit O.S.No.484 of 1978.

24. The learned counsel would further submit that since the

properties are undivided shares, the plaintiffs ought to have

impleaded the legal heirs of the Iyyakannu Kounder and the Court

below has rightly rejected the suit on the ground of non-joinder of

necessary parties.

25. Heard the learned counsels and perused the records.

26. The legal heirs of Varadarasu Kounder are before the Court

from the year 1978. The deceased Purushothaman Kounder had

https://www.mhc.tn.gov.in/judis purchased a 1/7th share of his paternal uncle Sengeni Kounder in

respect of all their properties. He had therefore filed a suit for

partition of all the properties in O.S.No.484 of 1978. A preliminary

decree had been passed and this was taken up on appeal and thereafter

formed the subject matter of S.A.No.926 of 1991. The Judgement of

this Court in the Second Appeal had held that the plaintiff therein,

namely, Purushothaman Kounder was entitled to a partition of the

property purchased by him.

27. The plaintiffs herein had thereafter filed a suit O.S.No.133

of 1992 for partition and separate possession of the suit properties

which had been described in detail in schedules A to D therein.

28. The learned Judge granted a decree for partition in respect of

the A-schedule of property except for Item Nos.1 to 3 and 4 (a) of the

A-schedule property, since these items were already the subject matter

of the suit O.S.No.484 of 1978, as a part of the A-Schedule property.

https://www.mhc.tn.gov.in/judis The learned Judge had observed that, in the light of the above, the

property could not be partitioned at that stage without passing final

decree. The learned Judge has observed as follows:

“Hence, those items of the properties which are

shown in 'A' schedule in O.S.No.484 of 1978, which finds

place in this suit 'A' schedule property, cannot be

partitioned at this stage without passing the final decree

in the previous suit. Hence, as far as those items are

concerned this Court has to identify the same. Both the

parties agreed that the item No.1, 2, 3 and 4 (a) are the

four items, which finds place in the other suit in

O.S.No.484 of 1978. Except those four items, the

preliminary decree can be passed with regard to the other

items. This issue is answered accordingly.”

29. It is also seen that the said Purushothaman Kounder had

filed proceedings for grant of final decree in I.A.No.717 of 2006 in

https://www.mhc.tn.gov.in/judis O.S.No.484 of 1978. Further, the said petition was dismissed as steps

had not been taken by order dated 09.04.2007. Therefore, the

situation contemplated in the suit O.S.No.133 of 1992 continues to

date as the final decree is yet to be passed in the suit O.S.No.484 of

1978. Therefore, it is clear that the suit is barred by the principle of

res judicata.

30. As regards the issue of non–joinder in the suit O.S.No.133

of 1992, the Court had observed that the properties which was shown

as the A-Schedule property in the said suit which included the suit

schedule properties were the properties of Varadarasu Kounder.

Therefore, there was no necessity to implead all the legal heirs of the

said Iyyakannu Kounder. Therefore, it cannot be said that the suit is

bad for non-joinder of necessary parties. I therefore answer the point

for consideration regarding res judicata against the appellants and

non-joinder in favour of the appellants. The First Appeal is therefore

dismissed.

https://www.mhc.tn.gov.in/judis

31. However, the plaintiffs / appellants are at liberty to work out

their remedies in the final decree proceedings I.A.No.717 of 2006 in

O.S.No.484 of 1978 which has been instituted by the deceased

Purushothaman Kounder, by filing necessary application for restoring

the same, which was dismissed for default on 09.04.2007. With these

observations, the First Appeal is dismissed. No costs.

                                                                                         08.10.2021

                     Index              : Yes/No
                     Internet           : Yes/No
                     kan

                     To
                     The II Additional District Judge,
                     Pondicherry.




                                                                                     P.T. ASHA, J,


https://www.mhc.tn.gov.in/judis
                                                kan




                                  A.S.No.281 of 2014




                                         08.10.2021






https://www.mhc.tn.gov.in/judis