Selvaraj vs Selvakani
2022 Latest Caselaw 6792 Mad

                                                                                      A.S.(MD)No.126 of 2016


                            BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                    DATED : 01.04.2022

                                                         CORAM

                                  THE HONOURABLE MS.JUSTICE R.N.MANJULA

                                               A.S.(MD)No.126 of 2016
                                                        and
                                              C.M.P.(MD)No.8729 of 2016

                Selvaraj                                                ... Appellant/Defendant
                                                            Vs.
                1.Selvakani
                2.Thangaraj                                             ... Respondents/Plaintiffs



                Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code, against the

                judgment and decree passed in O.S.No.45 of 2011 on the file of the I Additional

                District Judge, Tirunelveli, dated 08.03.2016.


                                  For Appellant      : Mr.M.P.Senthil

                                  For Respondents    : Mr.G.Ramanathan



                                                      JUDGMENT

This Appeal Suit has been preferred challenging the judgment and decree of the

learned I Additional District Judge, Tirunelveli, dated 08.03.2016 made in O.S.No.

45 of 2011.

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

A.S.(MD)No.126 of 2016

2.The appellant is the defendant; the suit has been filed by the plaintiffs for the

relief of partition and possession in respect of the suit properties; the suit properties

are said to be the properties owned by one Kailasa Nadar, who is the father of the

plaintiffs and the defendant; the first plaintiff is the daughter of Kailasa Nadar, the

second plaintiff and the defendant are sons of Kailasa Nadar; Kailasa Nadar died

on 12.11.2007 and his wife, namely, Thayammal, predeceased him in the year

2002 itself; Kailasa Nadar died intestate leaving behind the plaintiffs and the

defendant as his legal heirs; the suit properties were in enjoyment of the plaintiffs

and the defendant; since the defendant attempted to create documents in respect of

the suit properties, the plaintiffs issued legal notice calling upon the defendant to

effect partition; since the defendant did not come forward for partition, the suit has

been filed.

3.The defendant resisted the suit by filing his written statement; the relationship

between the parties was not disputed; according to the defendant, oral partition had

already been effected and in pursuance of that, both the second plaintiff and the

defendant executed settlement deeds in respect of their sons by virtue of Exs.B1

and B2; since the first plaintiff's daughter was given in marriage to the second

plaintiff's son, the second plaintiff had instigated the first plaintiff to file the suit for

partition; item No.15 of the suit properties belonged to the joint family of Kailasa

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

A.S.(MD)No.126 of 2016

Nadar and his brothers; his brothers and their legal heirs were not added as parties;

the alienees of Exs.B1 and B2 are also necessary parties and they were not added

as parties; item No.16 had been included and it was removed later; that would

reflect the conduct of the plaintiffs for having some ulterior motive in filing the

suit for partition; the father of the first plaintiff had given jewels and Shridhana at

the time of her marriage itself and this was not revealed in the suit; hence, the suit

is bad for partial partition and for non-joinder of necessary party.

4.On the basis of above pleadings, the learned trial Judge framed the following

issues:

“1.thjpfSf;F gpuhjpy; nfhhpa[s;sgo gpuhJ jgrpy;

brhj;Jf;fspy; 2/3 ghfk; fpilf;fj;jf;fjh?

2.thjpfSf;F fpilf;ff; Toa ,ju ghpfhuk; vd;d?

3.tHf;F njitahd jug;gpdh;fis nrh;f;fhj njhrj;jpw;F cl;gl;Ls;ssjh?

4.tHf;F fhythjp rl;lj;jhy; ghjpf;fg;gl;Ls;sjh?

5.tHf;F gFjp ghf;g;gphptpid njhrj;jpw;F cl;gl;Ls;jh? kw;Wk;

6.gpujpthjp TWk; tha;bkhHp ghfg;gphptpid cz;ikahdhjh?”

5. During the course of evidence, on the side of the plaintiffs, two witnesses were

examined and Exs.A1 to A15 were marked; on the side of the defendant, two

witnesses were examined and Exs.B1 to B3 were marked.

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

A.S.(MD)No.126 of 2016

6. At the conclusion of the trial, the learned trial Judge decreed the suit as prayed

for; aggrieved over that, the defendant filed this Appeal Suit.

7.Mr.Govindaraj, learned counsel for the appellant submitted that the suit itself has

been filed at the instigation of the first plaintiff because she has special bond with

the second plaintiff due to her daughter’s marriage with the second plaintiff's son;

the oral partition effected between the brothers and Exs.B1 and B2 were executed

by the second plaintiff and the defendant in favour of their sons respectively; P.W.1

during her cross-examination admitted the joint ownership of Item No.16 by the

brother of Kailasa Nader; after having included Item No.16 in the suit schedule

properties, the same was removed subsequently with ulterior motive and that is

exhibited in the cross-examination of P.W.1; P.W.1 had given conclusive statement

about Item No.16 vide Exs.B1 and B2; without inclusion of Item No.16, the suit

will be bad for partial partition; the learned trial Judge had omitted to appreciate

the proof for partial partition and non-joinder of necessary parties and proceeded

to decree the suit as prayed for; hence, the appeal should be allowed; in support of

his contentions, the learned counsel for the appellant relied on the following

decisions:-

“(i) 2019-5-L.W. 857 (Alli Sekar alias Sekar Vs. Ramu & others)

(ii) (2017) 6 MLJ 689 (Karuppayammal Vs. Samiyappa Gounder)”

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

A.S.(MD)No.126 of 2016

8.Mr.G.Ramanathan, learned counsel for the respondents submitted that

admittedly, the properties are owned by the father, namely, Kailasa Nadar; the

alleged oral partition was proved by the parties; the suit cannot be hit by partial

partition because partial partition is maintainable under certain ex-ordinary

circumstances, where the parties chose to leave some of the items to be under their

joint possession; since the evidence of P.W.1 clearly speaks about the oral partition

between Kailasa Nadar and his brothers in respect of Item No.15, the brothers of

Kailasa Nadar and their legal heirs are not necessary parties to the suit; the learned

trial Judge appreciated the evidence on record in a proper perspective manner and

decreed the suit and the same does not require any interference.

9.The following points for consideration are relevant for the purpose of deciding

this Appeal Suit:-

“1.Whether the suit is bad for partial partition?

2.Whether the suit is bad for non-joinder of necessary parties?

3.Whether the preliminary decree passed by the learned trial Judge is fair and proper?”

10. The relationship between the parties as siblings is not in dispute. The suit

properties were originally owned by Kailasa Nadar, who is the father of the parties

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

A.S.(MD)No.126 of 2016

is also not disputed. While the plaintiffs claim that the whole of the suit schedule

properties are self-acquired properties of Kailasar Nadar, the defendant stated that

Item No.15 is the joint family properties of Kailasa Nadar and in respect of the

same, no partial partition is maintainable. However, P.W.1 had asserted that since

the partition had effected between the brothers of Kailasa Nadar in respect of Item

No.15, the legal heirs of the brothers of Kailasa Nadar are not necessary parties to

the suit. Despite, the defendant had pleaded about the joint possession of Kailasa

Nadar and his brothers in respect of Item No.15, he has not chosen to examine any

of the above parties to prove that Item No.15 is still a joint family property. On

these ground, I do not feel that the brothers of Kailasa Nadar or their legal heirs

are necessary parties to the suit.

11.The appellant/defendant claimed that an oral partition had taken place between

the parties subsequent to the death of Kailasa Nadar. In evidence thereof, the

learned counsel for the appellant relied on Exs.B1 and B2/settlement deeds

executed by the second plaintiff and the defendant in favour of their respective

sons. In Ex.B2, the defendant had attested as one of the attestors and in Ex.B1, the

second plaintiff had attested as an attestor. In the recital of Exs.B1 and B2, it is

stated that the executant of the settlement deeds have title to the properties by way

of an oral partition between themselves. The fact remains that the property

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

A.S.(MD)No.126 of 2016

involved in Exs.B1 and B2 is the property owned by their father, namely, Kailasa

Nadar. Though it is alleged that there was an oral partition between the parties, it

was not proved. Even the recitals of Exs.B1 and B2 are silent about the

participation of the first plaintiff, who is also the legal heir of Kailasa Nadar.

Without the participation of all the sharers, no oral partition could be effected

legally. By virtue of Exs.B1 and B2, the beneficiaries can only acquire title in

respect of the undivided shares of their respective executant.

12. In other words, the beneficiaries of Exs.B1 and B2 are akin to the subsequent

purchasers from the joint owners. Hence, it is open to them to get themselves

impleaded as parties in the final decree proceedings and work out equity in

apportionment if it is feasible. Hence the suit is not bad for non-joinder of

necessary parties even for the non-inclusion of beneficiaries of Exs.B1 and B2.

Thus, Point No.2 answered in favour of the respondents.

13. The learned counsel for the appellant/defendant submitted that the suit is bad

for partial partition for non-inclusion of item No.16 as admitted by P.W.1 in her

own evidence. It is fatal from the evidence of P.W.1 that she was under a

confusion whether Item No.16 can be included in the suit for partition, in view of

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

A.S.(MD)No.126 of 2016

the settlement deeds/Exs.B1 and B2. The impact of Exs.B1 and B2 has already

been dealt above. Since the relationship between the parties is not in dispute and

the ownership of Kailasa Nadar in respect of Item No.16 was also not denied, it is

open to the parties to include Item No.16 for partition during final decree

proceedings. However, taking into consideration of Exs.B1 and B2, while

apportioning the shares, the feasibility of allotting the properties involved in

Exs.B1 and B2 to the shares of the respective executants may be worked out..

Item No.14 is said to be the graveyard of Kailasa Nadar, which is not dividable.

As stated already, these facts can be brought before the learned trial Judge at the

time of passing the final decree proceedings in order to get appropriate orders.

14.With regard to remaining properties, there is no dispute and hence both the

plaintiffs and the defendant have got equal shares. Though it is claimed by the

appellant/defendant that during the life of Kailasa Nadar, one of the properties was

settled in favour of the first plaintiff at the time of her marriage, that was only at

the Will and pleasure of Kailasa Nadar and only the remaining properties of

Kailasa Nadar alone can be claimed for partition. Unless and until, it is proved

that the first plaintiff had relinquished her rights for entitlement of share of joint

possession in respect of suit properties, it cannot be pleaded that the first plaintiff

is not entitled any share from her father's properties which he left without making

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

A.S.(MD)No.126 of 2016

any testamentary arrangement. The learned trial Judge has rightly dealt with the

issue in this case and decreed the suit in respect of the plaintiffs. Hence, Point

Nos.1 and 3 are answered in favour of the respondents.

15.In the result, this Appeal Suit is dismissed the judgment and decree dated

08.03.2016 made in O.S.No.45 of 2011 by the learned I Additional District Judge,

Tirunelveli, is confirmed with an observation that subject matter of Exs.B1 and B2

should also be included in the final decree proceedings, if it is possible. No costs.

Consequently, connected Miscellaneous Petition is closed.

01.04.2022 Index : Yes / No Internet : Yes/ No ias

To:

The I Additional District Court, Tirunelveli.

Copy to:

The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.

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

A.S.(MD)No.126 of 2016

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

A.S.(MD)No.126 of 2016

R.N.MANJULA, J.

ias

A.S.(MD)No.126 of 2016

01.04.2022

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