Madras High Court
Dharmar vs A.Savarimuthu on 19 April, 2023
C.M.A(MD)No.1551 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.04.2023
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.1551 of 2013
and
M.P(MD)Nos.1 & 2 of 2013
Jeyamary (Died)
1.Dharmar
2.Anthony
3.Xavier
4.Jesuraj ... Appellants/Respondents 4-7
Vs.
Savariammal (Died)
Periyanayagathammal (Died)
1.A.Savarimuthu
2.Velankanni Ammal
3.Arockiasamy
4.Madhalaimary ... Respondents/Appellants
Arockia Udayar (Died)
5.Arockiasamy ... Respondents/Respondents 1&3
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C.M.A(MD)No.1551 of 2013
PRAYER: Civil Miscellaneous Appeal is filed under Order 43 (1) (u) of
the Code of Civil Procedure, to set aside the order of remand passed by
judgment and decree, dated 22.03.2013 in A.S.No.3 of 2005 and I.A.No.
166 (A) of 2012 in A.S.No.3 of 2005 on the file of the learned Principal
Subordinate Judge, Dindigul.
For Appellants : Mr.A.R.Sethupathi
For Respondents : Mr.S.Manohar
JUDGEMENT
The present appeal has been filed by the 2nd defendant in a suit for
partition who is the purchaser from the 1st defendant.
2. The respondents 1 to 4 had filed O.S.No.780 of 1995 on the file
of Principal District Munsif Court, Dindigul for the relief of partition
claiming 2/3rd share in the suit schedule properties. According to the
plaintiffs, the suit schedule property originally belonged to one
Periyanayagathammal and after her death, it devolved upon the 4
plaintiffs and on the 1st defendant who are the sons and daughters of the
said Periyanayagathammal. Since the properties have not been
partitioned, the plaintiffs claimed 2/3rd share under the Indian Succession
Act.
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C.M.A(MD)No.1551 of 2013
3. The 1st defendant had filed a written statement contending that
the original owner of the property, namely Periyanayagathammal had
orally gifted the property in his favour and therefore, the plaintiffs do not
have any right to claim a share in the above said properties. He had
further contended that he had sold some of the properties in favour of the
3rd parties and those third parties have not been impleaded and therefore,
the suit is bad for non-joinder of necessary parties. The 1st defendant had
further contended that he had executed two sale deeds, on 13.09.1994
and 19.07.1995 in favour of the 2nd defendant and possession has been
handed over to the 2nd defendant. The 2nd defendant had filed a written
statement contending that the 1st defendant has executed a registered
settlement deed in favour of his wife and daughter under Exhibit P.21.
The said property has not been included in the suit and the beneficiaries
of the said settlement deed have also not been impleaded. The 2nd
defendant had further contended that the 1st defendant had sold some of
the properties to the 3rd parties and they have not been impleaded.
4. The trial Court after considering the oral and documentary
evidence arrived at a conclusion that the plaintiffs having not impleaded
the properties covered under Exhibit P.21 the suit is bad for partial
partition. The trial Court further found that the purchasers under Exhibit
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C.M.A(MD)No.1551 of 2013
P.21 have not been impleaded and according to the 1st defendant, he has
sold some of the properties to the 3rd parties and the said 3rd parties
having not been impleaded, the suit is bad for non-joinder of necessary
parties. Based upon the said findings, the trial Court had dismissed the
suit.
5. Challenging the said judgment and decree of the trial Court, the
plaintffs had filed A.S.No.3 of 2005 before Principal Sub Court,
Dindigul. Pending appeal, the appellants have filed I.A.No.166 (A) of
2012 for marking certain additional documents under Order 41 Rule 27
of Code of Civil Procedure. The first appellate Court had proceeded to
accept the said documents and they have been marked as Exhibits A.9 to
A.14. The first appellate Court had agreed with the findings of the trial
Court that the plaintiffs are entitled to 2/3rd share in the suit properties.
The first appellate Court also confirmed the findings that the suit is bad
for non-joinder of necessary parties and for partial partition. However,
the first appellate Court had remitted the matter back to the trial Court on
the ground that the plaintffs may be given an opportunity to implead the
3rd parties and to include the properties that were left out by the plaintiffs.
This order of remand is under challenge in the present appeal by the 2nd
defendant.
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C.M.A(MD)No.1551 of 2013
6. The learned counsel appearing for the appellant/2nd defendant
had contended that when a suit for partition was dismissed by the trial
Court on the ground of partial partition and non-joinder of necessary
parties and the first appellate Court also has confirmed the said findings,
thereafter, the first appellate Court ought not to have remitted the matter
back to the trial Court. Once the findings of the trial Court are confirmed,
the first appellat Court should have dismissed the appeal and confirmed
the judgment and decree of the trial Court. The plaintiffs should not have
been given a second opportunity to implead the necessary parties and to
include the left out properties, especially, when the defendants in their
written statement have pointed out about the alienations and the non-
joinder of necessary parties. Hence, he prayed for allowing the appeal
and to reverse the order of remand.
7. Per contra, the learned counsel appearing for the
respondents/plaintiffs had contended that in the written statement filed
by the 1st defendant, there is no pleading with regard to the settlement of
some of the properties in favour of his wife and daughter. Only at the
time of deposition, the 1st defendant has chosen to mark Exhibit P.21,
which is a settlement deed said to have been executed by the 1st
defendant in favour of his wife and daughter. Therefore, the plaintiffs did
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C.M.A(MD)No.1551 of 2013
not have any opportunity to include the said property or to implead the
beneficiaries of the said document. He further contended that in the
written statement filed by the 1st defendant, there is a vague averment
that he has sold the properties to 3rd parties. There is no specific mention
about the survey number or the person who has purchased the property.
Though there is a reference in the written statement filed by the 2nd
defendant that reference is also relating to the settlement deed said to
have been executed by the 1st defendant, there is no reference whatsoever
with regard to the alienations made by the 1st defendant in favour of third
parties. Hence, they did not have any opportunity to implead the
purchasers. He further contended that the parties being christians, there is
no ancestral property and the 1st defendant having pleaded oral gift, he is
not entitled to settle the property in favour of his wife and daughter.
Thereofore, in order to get over the technical defence raised by the
defendants in the suit, the first appellate Court had remitted the matter
back to the trial Court permitting the plaintiffs to include certain
properties and to include the necessary parties. Therefore, he contended
that the order of remand may be confirmed and the appeal may be
dismissed.
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C.M.A(MD)No.1551 of 2013
8. I have carefully considered the submissions made on either side
and perused the records.
9. The trial Court as well as the first appellate Court have arrived
at a concurrent finding that one of the property that was settled by the 1st
defendant in favour of his wife and daughter under Exhibit P.21 has not
been included and the beneficiaries of the said document have not been
impleaded in the said suit. Therefore, it is clear that the suit is bad for
partial partition. Though the defendants 1 and 2 have contended that
some of the properties have been alienated in favour of third parties, no
details are available either in the written statement filed by the 1st
defenant or in the written statement filed by the 2nd defendant. A suit for
partition which is dismissed on the technical ground of partial partition
or non-joinder of necessary parties is not a bar for filing a fresh suit for
partition. In such view of the settled position of law, this Court is of the
view that the first appellate Court was right in remitting the matter back
to the trial Court for inclusion of certain properties and to implead the
necessary parties.
10. The respondents/plaintiffs shall implead the beneficiaries of
Exhibit P.21 document and the property that is transacted under Exhibit
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C.M.A(MD)No.1551 of 2013
P.2. In case, if the defendants provide any details about the alienation of
properties to 3rd parties, the said peroperties and the parties concerned
may be impleaded.
11. In view of the above said deliberations, this Court is of the
view that the first appellate Court has rightly exercised its power to
remand and remitted the matter back to the trial Court. Therefore, the
appeal lacks merits and the same is dismissed. The trial Court shall
permit the plaintiff to implead the parties connected with Exhibit P.21
and the property covered under Exhibit P.21 and proceed with the trial.
However, the plaintiff will be obliged to implead the third parties and
include the properties sold to third parties, only if any details are
furnished by the defendants.
12. With the above said observations, this Civil Miscellaneous
Appeal is dismissed. No costs. Consequently, connected Miscellaneous
Petitions are closed.
19.04.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
gbg
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C.M.A(MD)No.1551 of 2013
To
1.The Principal Subordinate Judge,
Dindigul.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.1551 of 2013
R.VIJAYAKUMAR ,J.
gbg
Order made in
C.M.A(MD)No.1551 of 2013
19.04.2023
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