Madras High Court
Ananthakrishnan (Died) vs Rajendra Prasath on 28 February, 2022
S.A.(MD)No.287 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.287 of 2010
1.Ananthakrishnan (died) ... Appellant / 1st Appellant / 5th Defendant
2.Gopalakrishnan ... Appellant / 2nd Appellant / 6th Defendant
3.Radhakrishnan ... Appellant / 3rd Appellant / 7th Defendant
4.Ranjitham
5.Sivaramakrishnan
6.Jayakrishnan
7.Krishnalatha
8.Mahakrishnan
9.Krishnaprabhu
10.Kamalakrishnan
11.Krishnaselvi ... Appellants
(Appellants 4 to 11 are brought on record as Lrs of the deceased
1st appellant vide court order dated 09.02.2022 )
-Vs-
1.Rajendra Prasath ... Respondent / 1st Respondent / 1st Plaintiff
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S.A.(MD)No.287 of 2010
2.Gandhimathi ... Respondent / 4th Respondent / 8th Defendant
3.Krishnathangan ... Respondent / 5th Respondent / 9th Defendant
4.Krishnaveni ... Respondent / 6th Respondent / 10th Defendant
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 22.01.2008 made in A.S.No.
96 of 2006 on the file of the Ist Additional Subordinate Judge, Nagercoil,
confirming the judgment and decree dated 10.07.2006 made in O.S.No.257
of 1992 on the file of the Court of the Principal District Munsif, Nagercoil.
For Appellants : Mr.T.Murugamanickam
senior counsel
for Mr.G.Prabahari
For R1 : Mr.B.Senthil Kumar
JUDGMENT
The legal heirs of the deceased 4th defendant in O.S.No.257 of 1992
on the file of the Principal District Munsif Court, Nagercoil filed this
second appeal.
2. The first appellant passed away during the pendency of the second
appeal and his legal heirs A4 to A11 have come on record. The said suit
was filed by one Rajendra Prasath seeking the relief of partition,
redemption of mortgage and other reliefs. The 4th defendant namely
Sivalinga Nadar contested the suit and he filed written statement
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S.A.(MD)No.287 of 2010
controverting the plaint averments. The learned trial Judge framed the
necessary issues. One of the issues was whether the suit was bad for non
joinder of necessary parties. The plaintiff examined himself as P.W.1 and
one Kalirathinam was examined as P.W.2. Ex.A1 to Ex.A25 were marked.
On the side of the defendants, one Radhakrishnan was examined. Ex.B1 to
Ex.B14 were marked. An advocate commissioner was appointed and his
report and plan were marked as court exhibits 1 & 2. After consideration of
the evidence on record, the trial Judge passed preliminary decree partly
decreeing the suit on 10.07.2006. Aggrieved by the same, the legal heirs of
the fourth defendant filed A.S.No.96 of 2006 before the first Additional Sub
Court, Nagercoil. By the impugned judgment and decree dated 22.01.2008,
the first appellate court confirmed the decision of the trial court and
dismissed the appeal. Challenging the same, the second appeal came to be
filed. Though the second appeal was filed way back in the year 2010, only
notice was ordered and it has not been admitted till date.
3. The learned senior counsel appearing for the appellants submitted
that the suit property originally belonged to one Sivakami,
Arunachalampillai and Chockalingampillai. The suit property measures
63 ½ cents. The said title holders executed Ex.A1-mortgage deed dated
07.11.1940 in favour of the 4th defendant Sivalinga Nadar. Later, Sivalinga
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S.A.(MD)No.287 of 2010
Nadar sub mortgaged 7 cents out of the same in favour of one Marthanda
Thondaman. The said mortgage was marked as Ex.A2. While so,
Chockalingam who was one of the mortgagors sold the entire extent of
63 ½ cents in favour of Sivalinga Nadar under Ex.A5 dated 16.11.1979.
Arunachalam Pillai had passed away and his wife Pirammu Ammal and one
of his sons namely Boothalingam sold the southern half of 63 ½ cents in
favour of Marthanda Thondaman under Ex.A6 dated 24.10.1980.
Marthanda Thondaman had five legal heirs namely Kali Ratnam, Gopalan,
Iyappan, Mohanan and Thayammal. Three legal heirs of Marthanda
Thondaman namely Kali Ratnam, Gopalan and Iyappan sold 31 ¾ cents of
the suit property in favour of the plaintiff Rajendra Prasath under Ex.A7
dated 16.12.1991. On the strength of this sale deed dated 16.12.1991, the
present suit came to be laid.
4. The learned senior counsel pointed out that the suit is for partition
as well as redemption of mortgage. Therefore, it was incumbent on the part
of the plaintiff to implead all the necessary parties. My attention is drawn
to Order 1 Rule 9 of C.P.C and Order 34 Rule 1 of C.P.C. A bare reading of
the aforesaid provisions would clearly show that failure to implead
necessary party is fatal to the very maintainability of the suit. Both in a
partition suit as well as in a redemption suit, all the necessary parties will
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S.A.(MD)No.287 of 2010
have to be impleaded. Otherwise, the defendants will be vexed with a fresh
claim by another stake holder. Only to avoid such eventualities, the courts
uniformly adopt the rule that the non joinder of necessary parties is bad in
partition suits and the redemption suits. The learned senior counsel
specifically pointed out that the trial court was careful enough to frame an
issue in this regard. The plaintiff who had wantonly omitted to implead the
other parties cannot be now seek any indulgence before this Court. He
would also point out that since there is no knowledge about what was the
internal arrangement among five legal heirs of Marthanda Thondaman and
therefore, the courts below erred in allotting a specific extent of the suit
property in favour of the plaintiff.
5. I straight away observe that the contention putforth by the learned
senior counsel is beyond cavil. In fact, I am tempted to accept the said
contention, allow the second appeal and dismiss the suit in toto. However, I
refrain from doing so only for the reason that the present suit was instituted
way back in the year 1992 i.e., on 27.02.1992. We are now on 28.02.2022.
A full three decades have elapsed because of the unpardonable error
committed by the plaintiff. The matter may have to be undergo one more
round. This does not sound fair. Since the courts below have correctly
assessed the facts and analysed the documents in question, the concerns
rightly expressed by the learned senior counsel for the appellant can be
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S.A.(MD)No.287 of 2010
addressed and redressed in these proceedings itself. There is no dispute that
the suit property measuring 63 ½ cents belonged to Sivakami, Arunachalam
Pillai and Chockalingam Pillai. There is again no dispute that the said three
persons mortgaged the property in favour of Sivalinga Nadar (D4).
Sivalinga Nadar again sub mortgaged 7 cents in favour of Marthanda
Thondaman under Ex.A2. However, Chockalingam Pillai could not have
sold the entire 63 ½ cents in favour of Sivalinga Nadar. The courts below
have rendered a finding that Sivalinga Nadar was entitled to alienate only
31 ¾ cents of land. Therefore, Ex.A5 is valid only to the extent of 31 ¾
cents of land.
6. Coming to Marthanda Thondaman, he had not taken the remaining
extent from the other two title holders namely Arunachalam Pillai and
Chockalingam Pillai. Arunachalam Pillai had passed away leaving behind
the four legal heirs namely Pirammu Ammal (wife), Boothalingam,
Bhagwathiya Pillai and Chendammal. Only Pirammu Ammal and
Boothalingam were the vendors in Ex.A6 dated 24.10.1980. Though under
Ex.A6, the vendors purported to alienate 31 ¾ cents on the southern side of
63 ½ cents in favour of Marthanda Thondaman, they could not have done
so. They could not have also chosen the southern half. At best, under
Ex.A6, Marthanda Thondaman could have got only 2/4th of 31 ¾th cents.
Marthanda Thondaman subsequently passed away leaving behind the five
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S.A.(MD)No.287 of 2010
legal heirs. Out of them, only three of them sold in favour of the plaintiff
Rajendra Prasad under Ex.A7 dated 16.12.1991. The vendors under Ex.A7
could not have sold the entire 31 ¾th cents of land. They could have sold
only 3/5th of 2/4th of 31 ¾th cents of land. Therefore, the plaintiff's right to
seek partition as well as redemption has to be necessarily confined only to
3/5th of 2/4th of 31 ¾th cents of land in the suit property. Preliminary decree
was passed only to this extent. The petition for passing final decree will be
entertained only if he impleads all the stake holders i.e., remaining legal
heirs of Arunachalam Pillai and Marthanda Thondaman. If he fails to do so,
the final decree petition to be filed by the plaintiff will not even be
numbered. If the left out legal heirs of Arunachalam Pillai and Marthanda
Thondaman raise any new plea, then, the appellants are at liberty to deal
with the same in the manner known to law. The court below while
considering the final decree petition will be entitled to decide the same.
The findings rendered in favour of the 4th defendant / his legal
representatives stand confirmed.
7. With this clarification and direction, the second appeal is
dismissed. No cost.
28.02.2022
Internet : Yes/No
Index : Yes/No
rmi
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.287 of 2010
G.R.SWAMINATHAN.J.,
rmi
To
1.The Ist Additional Subordinate Judge, Nagercoil.
2.The Principal District Munsif, Nagercoil.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.287 of 2010
28.02.2022
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