Madras High Court
Sathya Bhama ... 1St vs Vasudevan on 26 September, 2024
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
S.A(MD)No.1281 of 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.09.2024
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.1281 of 2006
and
M.P(MD)No.1 of 2006
1.Sathya Bhama ... 1st Appellant/Appellant/
1st Petitioner/9th Defendant
2.Jeya
3.Kanthymathy
4.Suja
5.Sindu ... Appellants 2 to 5/Appellants/
Petitioners 2 to 5/
Lrs of the 8th defendant
Vs.
1.Vasudevan
2.Kunjamma pillai
3.Neelakandan (died)
4.Nesamony
5.Chellan
6.Thanka pillai
7.VeluKutti Asari
8.Sukumaran Nair
9.Sadasivan Nair
10.Narayanan Nair
11.Vijayamma
12.Indira
13.Sreekumari ... Respondents 1 to 13/
Respondents 1 to 7 & 9 to 14/
Plaintiff & defendants 1 to 6 &
Lrs of the 7th defendant
14.Sarojini
1/16
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S.A(MD)No.1281 of 2006
15.Rasalan
16.rajan
17.Kumar
18.Sasi ... Respondents 14 to 18/
Lrs of the deceased 3rd Respondent
(Respondents 14 to 18 are brought on record as Lrs of the
deceased third respondent vide order dated 05.02.2021
made in M.P(MD)Nos.1 to 3 of 2010 in
S.A(MD)No.1281 of 2006)
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 07.08.2006 passed
in A.S.No.128 of 2005 on the file of the Sub Court, Kuzhithurai,
confirming the judgment and decree dated 06.12.2005 passed in
I.A.No.501 of 2004 in O.S.No.27 of 1977, on the file of the
1st Additional District Munsif Court, Kuzhithurai.
For Appellant : Mr.V.Meenakshi Sundaram
For R – 1 : Mr.P.S.Ganesan
For RR 4 to 6, 14,
16 & 17 : Mrs.J.Anandhavalli
JUDGMENT
The Judgments and decrees passed in I.A.No.501 of 2004 in
O.S.No.27 of 1977, on the file of the 1st Additional District Munsif
Court, Kuzhithurai and in A.S.No.128 of 2005 on the file of the Sub
Court, Kuzhithurai, are being challenged in the present Second Appeal.
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2.The first respondent herein as plaintiff instituted a suit in
O.S.No.27 of 1997 on the file of the trial Court against the respondents
2 to 7, Chellappan Pillai, Lakshmi Kutti and the plaintiff for the relief of
partition.
3.For the sake of convenience, the parties are referred to
as, as described before the trial Court.
4.According to the plaintiff, the suit properties namely
Survey Nos.2314, 2315 and 2311 of Methukumal Village formerly
belonged to Pachu Pillai alias Lakshmi Pillai daughter of Parvathi Pillai of
Karungavilakathu Veedu, Muthukummal Desom. The above said
Lakshmi Pillai along with her children partitioned the suit properties
and other properties on 24.04.1921. In the partition deed 'A' schedule
properties were allotted to Kunjamma Pillai daughter of Lakshmi Pillai,
the first defendant. On 07.07.1951, the said Kunjamma Pillai sold
15-1/2 cents in Survey No.2315 ie., plaint item No.1 in the suit in
favour of Sivaraman Asari, son of Pappu Asari in continuation of his
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earlier mortgage. Lakshmi Pillai daughter of Parvathi Pillai, who got
shares in the suit property gifted her share in the suit properties to her
daughter Kamalakshi Amma and her son-in-law Sukumara Pillai in
Document No.6547 of 1124 M.E. On 07.07.1951, the abovesaid
Kamalakshmi Amma along with her husband Sukumara Pillai sold 30
cents in Survey No.2316 ie., plaint item No.2 and 12 cents in Survey
No.2314 ie., plaint item No.3 to Sivathanu Asari son of Raman Asari of
Parayanvila Veedu. On 21.05.1953, the said Sivathanu Asari sold his
shares purchased by him in plaint item Nos.2 and 3 to Sivaraman Asari
son of Pappu Asari. Thus, the said Sivaraman Asari was entitled to and
was in possession of 15-/12 cents in plaint item No.1, 30 cents in plaint
item No.2 and 12 cents in plaint item No.3. The said Sivaraman Asari is
no more and his assets including his shares in the suit property
devolved on his son Vasudevan ie., the plaintiff and on his daughters
namely Lakshmi Kutti and Sathiyabhama, who are the defendants 8
and 9 in the suit. Thus, the plaintiff was entitled to and was in
possession of 1/3 of the properties of Sivaraman Asari. An Oodukoor
case No.1035 of Methukummal Village was taken with respect to plaint
item Nos.1 and 2 under the Travancore Godukoor Proclamation of the
year 1946 and an award has been passed on 31.01.1957. In the above
said Godukoor award, plot No.1 measuring 17 cents and plot No.4
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measuring 28.5 cents in plaint item No.1 and plot No.3 measuring 19
cents and plot No.4 measuring 11.5 cents in plaint item No.2 have
been allotted to Sivaraman Asari and other jointly. The common plots
namely plot Nos.1 and 4 and plaint item No.1 and plot Nos.3 and 4 in
plaint item No.2 were held in joint by Sivaraman Asari and others. The
plaintiff is entitled to get a partition of 5-1/6 cents in the common plots
of 1 and 4 and in item No.1 and 10 cents in the common plots of 3 and
4 in item No.2 as per the said award. In respect of item No.3, namely
2315 an award has been passed in case No.1034 of Methukummal
Village on 31.07.1955. Under the said award, plot No.2 measuring
7.334 cents has been allotted in the name of Parvathi Pillai, Lakshmi
Pillai, the predecessor-in-interest of Sivaraman Asari under whom the
plaintiff and defendants 8 and 9 claimed right. In the 'A' register kept
in the revenue department, Lakshmi Pillai was stated as Pattadar and
her name was mentioned in the award also, even though the plaintiff
and the defendants 8 and 9 obtained the right of Lakshmi Pillai. Thus,
the plaintiff and the defendants 8 and 9 are the owners in possession
of plot No.2 in item No.3. The plaintiff was entitled to partition of 1/3
share in plot No.2 in item No.3. Since the properties were held jointly,
there was much inconvenience in enjoying the properties and
therefore, the plaintiff was entitled to get his share of partition by
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metes and bounds. The remaining shares in the properties belong to
the defendants in the suit. Hence, the plaintiff has come forward with
the suit.
5.The defendants 2 to 5 filed a written statement stating
that the suit for partition was not maintainable as the properties
concerned were already partitioned by metes and bounds and the
averments of the plaintiff were not made in good faith and even the
plaintiff has no cause of action against the defendant. It is also
contended that the suit was barred by res judicata by judgment and
decree in O.S.No.19 of 1953 and the suit was also barred by estoppel.
6.The defendants 8 and 9 filed a written statement denying
the averments made in the plaint, except paragraph Nos.1 to 11 and
stated that the defendants 8 and 9 are the sisters of the plaintiff and
each was entitled to 1/3 of the right of Sivaraman Asari deceased
father, the eighth defendant was entitled to 5-1/6 cents in item No.1,
10 cents in item No.2 and 2.45 cents in item No.3; the ninth defendant
was entitled to 5-1/6 cents in item No.1, 10 cents in item No.2 and
2.45 cents in item No.3; on 20.08.1970, the ninth defendant sold 5
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cents in item No.2 to eighth defendant; the eighth defendant has a
building in item No.2 and the defendants 8 and 9 are in joint
possession of share; defendants 8 and 9 have no objection in plaintiff
getting partition of his share in plaint item and in partitioning the
shares of the defendants 8 and 9 may be allotted jointly.
7.On the basis of the said pleadings, oral and documentary
evidence, the trial Court dismissed the suit holding that the plaintiff
was not entitled to any share in the suit property and however, the
plaintiff cannot also have any share in plots according to Ex.A.5 and A.
6-Oodukoor awards and therefore, the plaintiff was not entitled to any
share in the suit property. Challenging the same, the plaintiff preferred
an appeal in A.S.No.324 of 1978 on the file of the Sub Court,
Kuzhithurai and the appellate Court also dismissed the appeal.
Challenging the concurrent judgments and decrees passed by the
Courts below, the plaintiff has preferred second appeal in S.A.No.1285
of 1985 on the file of this Court and this Court, by judgment and
decree, dated 17.07.1998, allowed the Second Appeal and granted 1/3
share out of 57-1/2 cents to the plaintiff/Vasudevan.
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8.The legal heirs of Lakshmi Kutti along with Sathya Bama
preferred an application in I.A.No.501 of 2004 in O.S.No.27 of 1977 on
the file of the 1st Additional District Munsif Court, Kuzithurai, for
passing a supplementary preliminary decree for declaring 2/3 share out
of 57-1/2 cents in the plaint schedule properties. The petitioners in
I.A.No.501 of 2004 are the daughter and children of pre-deceased
daughter of Sivaraman Asari.
9.On the basis of the rival pleadings made on either side,
the trial Court, by judgment and decree, dated 06.12.2005 dismissed
the application in I.A.No.501 of 2004 in O.S.No.27 of 1977 on the
ground that there was no declaration of shares in favour of the
daughters of the Sivaraman Asari in the previous round of litigation and
hence, the prayer for supplementary preliminary decree was not
maintainable.
10.Challenging the same, the petitioners preferred an
appeal suit in A.S.No.128 of 2005 on the file of the Sub Court,
Kuzhithurai.
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11.The first appellate Court, after hearing both sides and
upon reappraising the evidence available on record, has dismissed the
appeal and confirmed the judgment and decree passed by the trial
Court.
12.Challenging the said Judgments and decrees passed by
the Courts below, the present Second Appeal has been preferred at the
instance of the ninth defendant and legal representatives of the eighth
defendant as appellants.
13.On 16.07.2024, this Court admitted the present Second
Appeal and framed the following substantial question of law for
consideration:
'Whether the Courts below are right in rejecting the
petition for supplementary preliminary decree filed by
defendant No.9 and the legal representatives of eighth
defendant for 2/3 share on the ground that the High
Court did not declare the share of defendants 8 and 9 in
S.A.No.1285 of 1985?'
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14.The learned counsel appearing for the appellants would
submit that when this Court in S.A.No.1285 of 1985 vide judgment
dated 17.07.1998 preferred by the plaintiff, specifically found that
Sivaraman Asari, father of the present appellants and first respondent
herein was the owner of the entire extent of 57-1/2 cents, the courts
below are incorrect in declining the relief prayed for in I.A.No.501 of
2004; the Courts below misdirected itself as if it is an application filed
for passing final decree and dismissed I.A.No.501 of 2004 on the
misconception of facts and scope of passing supplementary preliminary
decree; when the ownership of Sivaraman Asari in respect of 57-1/2
cents attains finality by way of judgment of this Court in S.A.No.1285
of 1985, the Courts below ought not to have dismissed the application
filed by the other two legal heirs of Sivaraman Asari for passing
supplementary preliminary decree.
15.The learned counsel appearing for the respondents 4 to
6, 14, 16 & 17 would submit that the findings in respect of the sixth
defendant in the suit shall not be disturbed and as far as the claim of
the present appellants, the same may be decided vide judgment dated
17.07.1998 in S.A.No.1285 of 1985.
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16.Heard the learned counsel appearing for the appellants,
the learned counsel appearing for the first respondent and the learned
counsel appearing for the respondents 4 to 6, 14, 16 & 17 and also
perused the records carefully.
17.On perusal of the materials available on record, it is
seen that it is not in dispute that Sivaraman Asari is the owner of
57-1/2 cents in the suit schedule properties as held by this Court in
para 6 of the judgment dated 17.07.1998 in S.A.No.1285 of 1985,
wherein it reads as follows:
'6.The counsel for the appellant contends
that she was entitled to a share in the suit property on
the very findings of the lower appellate Court
recognising that the father of the appellant had title
over the suit property. In paragraph 10 of the
Judgment, it is seen that the appellate Court has
recorded a finding that the father of the appellant had
title over an extent of 30 cents in Survey No.2316 and
12 cents in Survey No.2314 and that he also took Ex.A.
2 sale from Lakshmi Pillai over an extent of 15-1/2
cents and the building in Survey No.2315. Therefore,
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the appellate Court has concluded that the appellant's
father had title over an extent of 30 cents in Survey
No.2316, 12 cents in Survey No.2314 and 15-1/2 cents
inclusive of the building in Survey No.2215.'
18.Further, it is also not in dispute that the first appellant
before this Court is the daughter of the abovesaid Sivaraman Asari and
the other appellants are the children of late.Lakshmi Kutti, who was
another legal heir of Sivaraman Asari. It is also not in dispute that the
plaintiff-Vasudevan got a preliminary decree of 1/3 shares out of
57-1/2 cents belongs to Sivaraman Asari in the judgment, dated
17.07.1998 in S.A.No.1285 of 1985. Only thereafter, the present
appellants filed I.A.No.501 of 2004 in O.S.No.27 of 1997 before the
trial Court with a prayer to pass preliminary decree for remaining 2/3
share in their favour jointly. However, the same was declined by the
trial Court on the ground that there is no declaration of shares in
respect of the defendants 8 and 9, namely, Lakshmi Kutti and Sathya
Bhama in the previous round of litigation and the same was also
confirmed by the first Appellate Court.
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19.In view of the above, this Court is of the view that the
plaintiff-Vasudevan is entitled to get a preliminary decree of 1/3 shares
out of 57-1/2 cents belongs to Sivaraman Asari. The remaining two
daughters, namely Lakshmi Kutti and Sathya Bhama, are also entitled
for the shares in the property equally. Further, 2/3 share to be divided
equally between the two daughters also. But, both the trial Court as
well as the Appellate Court has not decided this issue stating that only
regarding 57-1/2 cents in the second appeal in S.A.No.1285 of 1985 it
was decided that Vasudevan Asari is entitled for one-third share in
57-1/2 cents. Since there is no finding regarding the daughters, the
trial Court as well as the Appellate Court have erred in not considering
the fact that the daughters are also equally entitled for this share, this
Court is inclined to set aside the Judgments and decrees of the Courts
below and now clarify that the said daughters are also entitled to equal
share along with their brother-Vasudevan ie., one-third each in 57-1/2
cents in which their father Sivaraman Asari is entitled to. The Judgment
and decree in respect of the sixth respondent is sustained. The
substantial question of law framed is ordered accordingly.
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20.In the result, the Second Appeal stands allowed. No
costs. Consequently, connected Miscellaneous Petition is closed.
26.09.2024
Index : Yes/No
Internet : Yes/No
ps
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To
1.The Sub Court,
Kuzhithurai.
2.The 1st Additional District Munsif Court,
Kuzhithurai.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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V.BHAVANI SUBBAROYAN, J.
ps
Judgment made in
26.09.2024
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