Madras High Court
V.Arumugam @ Sundaramurthy vs V.Vimalavathy on 8 October, 2021
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
1/18
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
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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
between him and his brothers.
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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
father.
7. The plaintiffs would contend that the properties purchased in
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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 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
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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
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
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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 1/7th 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
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
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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 2nd
defendant had denied the claim of the plaintiffs that the properties had
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.
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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.
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 1/4 th
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
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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
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?”
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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 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
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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 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
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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.
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.
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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
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 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
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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.
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.”
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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
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
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dismissed.
31. However, the plaintiffs / appellants are at liberty to work out
their remedies in the final decree proceedings I.A.No.717 of 2006,
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.
https://www.mhc.tn.gov.in/judis/
P.T. ASHA, J,
kan
A.S.No.281 of 2014
08.10.2021
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