Madras High Court
Shanthi vs A.D.Rajagopal Naidu (Died) on 8 March, 2023
C.R.P.Nos.649 and 1493 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 08.03.2023
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.Nos.649 and 1493 of 2020
C.M.P.No.3350 of 2020
Shanthi ... Petitioner in CRP No.649 of 2020
R.Babu ... Petitioner in CRP No.1493 of 2020
Vs.
1. A.D.Rajagopal Naidu (Died)
2. R.Babu
3. Kanchana
4. Saraswathi
5. Sathiyabama
6. Dhanraj ... Respondents in CRP No.649 of 2020
[Respondents 3 to 6 brought on
record as Lrs of the deceased R1,
viz., A.D.Rajagopal Naidu vide
court order dated 07.12.2022
made in CMP No.21011 of 2022
in CRP No.649 of 2020 by
VBSJ]
1. A.D.Rajagopal Naidu (Died)
2. Shanthi
3. Kanchana
4. Saraswathi
5. Sathiyabama
6. Dhanraj ... Respondents in CRP No.1493 of 2020
https://www.mhc.tn.gov.in/judis
C.R.P.Nos.649 and 1493 of 2020
[Respondents 3 to 6 brought on
record as Lrs of the deceased R1,
viz., A.D.Rajagopal Naidu, vide
court order dated 07.12.2022
made in CMP No.14136 of 2021
in CRP No.1493 of 2020 by
VBSJ]
Civil Revision Petitions are filed under Article 227 of the Constitution
of India to set aside the fair and decreetal order dated 06.12.2019 in
I.A.No.1 of 2019 in O.S.No.1216 of 2019 on the file of the learned XVIII
Additional City Civil Court, Chennai respectively
In CRP No.649 of 2020
For Petitioners : Mr.M.Sriram
For Respondents : Mr.K.Venkatesan
In CRP No.1493 of 2020
For Petitioners : Mr.R.Siddharth
For Respondents : Mr.N.V.Prakash
COMMON ORDER
Since the issues involved in both the petitions are one and the same,
they are taken up together and a common order is being passed.
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C.R.P.Nos.649 and 1493 of 2020
2. The present Civil Revision Petitions have been filed to set aside
the fair and decreetal order dated 06.12.2019 in I.A.No.1 of 2019 in
O.S.No.1216 of 2019 on the file of the learned XVIII Additional City Civil
Court, Chennai respectively.
3. The brief facts of the case are as follows:-
The petitioner in C.R.P.No.1493 of 2020 is the plaintiff and the
petitioner in C.R.P.No.649 of 2020 is the defendant in O.S.No.1216 of
2019. The said suit has been filed for partition by dividing the suit schedule
property into two equal shares by metes and bounds and allot one such
share to the plaintiff, deliver possession of the same and to appoint an
advocate commissioner to effect such division, if necessary and to direct
the defendant to pay a sum of Rs.5,76,000/- Pending suit, I.A.No.1 of 2019
was filed by third party, viz., A.D.Rajagopal naidu/1st respondent, who is
none other than the father of the plaintiff and defendant in O.S.No.1216 of
2019 to implead himself as 2nd defendant in the suit. A counter has been
filed resisting the said claim by the plaintiff. The said petition was allowed
stating that in order to decide the issues in dispute pertaining to the present
suit, the said third party is a proper and necessary party. As against the
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C.R.P.Nos.649 and 1493 of 2020
same, the plaintiff and the defendant in O.S.No.1216 of 2019 have come
up with the present Revisions. Since the 1st respondent died, the other
legal heirs were brought on record as respondents 3 to 6 in both the
Revisions.
4. The learned counsels for the petitioners would submit that the trial
court failed to consider the Judgment and Decree passed in O.S.No.289 of
2003 by the Subordinate Court, Ranipet at Vellore, which was later,
confirmed in A.S.No.7 of 2012 by the Principal District Judge, Vellore,
wherein it was clearly held that the 1st respondent herein is not entitled to a
share in the present suit property and the same was confirmed by this
Court in S.A.No.736 of 2014.
5. The learned counsels for the petitioners also submit that the trial
court failed to look into the legal principle enunciated under Order I Rule 10
CPC, where only the necessary or proper parties have to be impleaded in
order to enable the court effectively and completely adjudicate upon and
settle all the questions involved in the suit and in this case, the 1st
respondent is neither the necessary nor a proper party to the suit.
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C.R.P.Nos.649 and 1493 of 2020
6. The learned counsel for the petitioners also submitted that the suit
property was purchased in the year 1987 and the 1st respondent has not
exercised any right over the property for more than 32 years, now, has
come forward with false claim ignoring the earlier rejection of his claim,
only for the purpose of dragging the suit. That apart, the learned counsel
has relied on the Judgment of the Hon'ble Supreme Court reported in
(1999) 4 Supreme Court Cases 243 [Pawan Kumar Gupta Vs. Rochiram
Nagdeo).
7. Per contra, it is the contention of the learned counsel for the
respondents 3 to 6 that the deceased - 1st respondent is the beneficial
owner of the suit property and executed the sale deed on 27.12.1987 in
favour of his son and daughter, viz., petitioners in these revisions.
8. The learned counsel for the respondents 3 to 6 also contends that
the petitioner in CRP No.1493 of 2020 filed the suit in O.S.No.289 of 2003
on the file of the learned Subordinate Judge, Ranipet for partition and 1/3 rd
share in the properties mentioned therein under the Schedules A, B and C
and for permanent injunction restraining 1st respondent from alienating or
encumbering the said suit properties, contending that the said properties
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C.R.P.Nos.649 and 1493 of 2020
were ancestral properties. The trial court passed a preliminary decree for
partition and 1/6th share in the schedule A properties, 1/3rd share in the
schedule B properties and 1/3rd share in items 2 to 6 of the Schedule C
properties, referred to therein and the properties in respect of the Item No.1
of 'C' schedule properties was dismissed by the trial court. Further, the 1st
respondent preferred an A.S.No.7 of 2012 and the learned Judge
confirmed the findings of the lower court on erroneous grounds.
9. That apart, it is represented on behalf of the respondents 3 to 6
that the petitioners have not approached the court with clean hands and
the present suit is not maintainable, thereby sought to dismiss the present
Revisions.
10. Heard the learned counsel on either side and perused the
pleadings as well as the counter pleadings and the Judgments passed by
the courts below, appellate court as well as this Court.
11. On going through the Judgment passed in O.S.No.289 of 2003
filed by the petitioner in C.R.P.No.1493 of 2020 against the respondents, it
could be seen that as far as seven issues have been framed for
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C.R.P.Nos.649 and 1493 of 2020
consideration, out of that, it is relevant to consider the fourth issue, viz., “4.
Whether the suit is bad for partition because of non-inclusion of Chennai
property?”. The trial court, taking shelter of Ex.B.4 concluded that the said
property was purchased in the name of the petitioners in both the CRPs out
of the fund provided by the 1st respondent. Further, the trial court proceed
to state that after the purchase, the property was under the effective control
of the petitioners and they have raised the loan, constructed the house and
discharged debt and the same is proved by Exs.A.5 and A.6, loan receipts.
The petitioners accepted that out of the fund donated by the 1 st respondent,
they have purchased the property and also having effective control over the
house property at Chennai, so it was concluded that the property at
Chennai is the petitioners' individual property and the same need not be
added in the partition suit.
12. It is important to note that aggrieved by the order passed by the
court below in O.S.No.289 of 2003, the 1st respondent and the
respondents 3, 5 & 6 have preferred an Appeal Suit No.7 of 2012 against
the petitioners. The appellate court also affirmed the findings of the lower
court. As against the same, the legal heirs of the 1st respondent, viz.,
respondents 3, 5 & 6 have preferred Second Appeal No.736 of 2014
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C.R.P.Nos.649 and 1493 of 2020
against the petitioners. This Court also was of the view that the suit
mentioned property cannot be considered as joint family property, the 1st
respondent / father, did not contribute any amount for the purpose of
development and the petitioners have borrowed several lakhs and
developed the property, thereby held that the present suit schedule
property need not be included in the suit for partiton.
13. In the present case on hand it is clear that the schedule of
property mentioned by the petitioner in C.R.P.No.1493 of 2020 / plaintiff in
O.S.No.1216 of 2019 is situated at Chennai and trial court in O.S.No.289
of 2003 on 28.07.2010, Appellate Court in A.S.No.7 of 2012 on 28.10.2013
as well as this Court in S.A.No. 736 of 2014 on 20.10.2022, with respect to
the schedule mentioned property in O.S.No.1216 of 2019, had held that
though in view of the recitals in the sale deed Ex.P.1 that a sum of
Rs.1,10,000/- was paid by the 1st respondent/ father for purchasing the said
property, but the Petitioner in C.R.P.No.1493 of 2020/ plaintiff and the
petitioner in C.R.P.No.649 of 2020 / defendant in O.S.1216 of 2019 , have
borrowed several lakhs and developed the property and discharged the
debts, which is evident through by Exs.A.5 and A.6 and admittedly, the 1st
respondent / father had not contributed any amount for development of the
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C.R.P.Nos.649 and 1493 of 2020
property and came to the conclusion that the subject mentioned property
need not be included in the suit for partition.
14. Considering the above said facts and circumstaces of the case
and in view of the judgment passed in S.A.No736 of 2014 dated
20.10.2022, the property is not a joint family property, thereby the 1st
respondent / father is not a necessary party to the suit and the partition is
only between the petitioners in the present Revisions and taking note of
the fact that the 1st respondent / father died and the legal heirs /
respondents 3 to 6 are also not entitled to the suit property and pending
S.A.No.736 of 2014, the 1st respondent / father was impleaded by way of
I.A.No.1 of 2019 before the court below and now that in S.A. No.736 of
2014, it has been decided that the subject mentioned property is an
individual property of the petitioners in the present Revisions, this Court
has no hesitation to set aside the order passed in I.A.No.1 of 2019 in
O.S.No.1216 of 2019 dated 06.12.2019.
15. Accordingly, the present Civil Revision Petitions are allowed and
the order passed in I.A.No.1 of 2019 dated 06.12.2019, impleading the 1st
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C.R.P.Nos.649 and 1493 of 2020
respondent-father is set aside. Consequently, connected miscellaneous
petition is closed. No costs.
08.03.2023
Index : Yes/No
Internet : Yes/No
Speaking /Non-Speaking Order
ssd
To
The XVIII Additional City Civil Court,
Chennai
https://www.mhc.tn.gov.in/judis
C.R.P.Nos.649 and 1493 of 2020
V.BHAVANI SUBBAROYAN, J.,
ssd
C.R.P.Nos.649 and 1493 of 2020
C.M.P.No.3350 of 2020
08.03.2023
https://www.mhc.tn.gov.in/judis
