Madras High Court
V.Nagarajan vs Selvameenal on 18 February, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
A.S.(MD)No.84 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.02.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
and
THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN
A.S.(MD)No.84 of 2015
and
M.P.(MD)No.1 of 2015
V.Nagarajan ... Appellant /
3rd Defendant
Vs.
1.Selvameenal
2.S.Panju @ Panchavarnam ... Respondents /
Plaintiffs 1 & 2
3.S.Murugan
4.S.Ponniah
5.M.Ganesan
4.S.Kaladevi ... Respondents /
Defendants 1,2,4 & 5
1/7
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A.S.(MD)No.84 of 2015
Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code to
set aside the judgment and decree dated 04.09.2013 passed in O.S.No.
203 of 2008 on the file of IV Additional District Judge, Madurai by
allowing this appeal.
For Appellant : Mr.K.Muraleedharan
For Respondents : Mr.Suriyanarayanan for R.3
No Appearance for R.4 & R.5
JUDGMENT
This appeal arises out of a partition decree. The scope of this
appeal is confined only to suit B Schedule. It belonged to one Chinnan
Servai. The said Chinnan Servai was none other than the grand father of
the plaintiffs and the first defendant. The plaintiffs and the first
defendant are the children of one Subramanian Servai. Chinnan Servai
had executed Ex.A1 and Ex.A2 settlement deeds dated 10.12.1979 and
17.12.1979 granting life estate for the settlees (plaintiffs and first
defendant) and further directing that after their life time, it will go
absolutely to their children.
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2.Chinnan Servai passed away. Thereafter, the plaintiffs filed
O.S.No.203 of 2008 on the file of IV Additional District Judge, Madurai
claiming their share.
3.The first plaintiff examined herself as PW1 and marked Ex.A1 to
Ex.A11. The first defendant examined himself as DW2 and the appellant
herein examined himself as DW1. Ex.B1 to Ex.B3 were marked. After
consideration of the evidence on record, the trial Court passed
preliminary decree holding that the plaintiffs are entitled to 2/3rd share in
respect of A and B schedule properties and ½ share in the C schedule
property. Aggrieved by the same, this appeal has been filed.
4.The learned counsel appearing for the appellant reiterated all the
contentions set out in the memorandum of grounds of appeal and
submitted that the partition suit itself is not maintainable since the
plaintiffs are only life estate holders.
5.Though the plaintiffs have been served and their names are
printed in the cause list, they have not chosen to enter appearance.
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6.We carefully considered the rival contentions advanced by the
learned counsel for the appellant and also went through the evidence on
record as well as the pleadings. Two points arise for determination:
i)Whether the suit for partition by life estate holder is
maintainable?
ii)Whether this appeal is competent?
7.We carefully went through the terms of the settlement deeds
Ex.A1 and Ex.A2 executed by Chinnan Servai in favour of the plaintiffs
and the first defendant. It contains a categorical direction that the
settlees are not entitled to alienate or encumber the settled properties. In
fact, the settlees were to enjoy only life estate and after their demise, the
properties were to go absolutely to their legal heirs.
8.However, the first defendant Murugan in clear breach of the said
directive set out in Ex.A1 / A2 had sold two items of suit B Schedule
property in favour of the appellant. The appellant's vendor had only a
joint life estate. He was forbidden by the terms of settlement to alienate
or encumber the settled property. When the settlee had only a joint life
interest, he could not have dealt with the property as if he is its absolute
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owner. We are therefore of the view that this appeal by the purchaser is
not competent.
9.If life interest is conferred jointly and difference of opinion arises
between them in the matter of actual enjoyment of the settled property, it
can be resolved only by filing a partition suit. Section 9 of CPC states
that all suits of civil nature can be tried provided their cognisance is not
expressly or impliedly barred. A partition suit is a suit of civil nature.
Unless there is any express or implied bar, a life estate holder can seek
partition provided the other conditions for filing a partition suit are met.
Our attention has not been drawn to any case law indicating that a life
estate holder is not entitled to the relief of partition. Admittedly, in this
case, joint life estate was conferred on the plaintiffs and the first
defendant. Difficulties arose in the matter of joint enjoyment. The first
defendant had obviously taken an upper hand. He sought to exclude the
plaintiffs. Therefore, the plaintiffs had cause of action. Since there is no
prohibition against filing of the partition suit, the Court below rightly
entertained the suit for partition. The decree passed at the instance of the
life estate holders against the remaining life estate holder will hold good
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till the demise of all of them. After the demise of all the three life estate
holders, their heirs will get right in the suit schedule properties as per the
settlement deeds.
10.We do not find any ground to interfere with the preliminary
decree passed by the court below. This appeal is without any merit. It
stands dismissed.
11.The learned counsel appearing for the appellant submitted that
the appellant may be permitted to work out his equity in the final decree
proceedings. We are not able to accede to this request because the
appellant's vendor, namely, the first defendant had only life estate and he
himself was not competent to alienate the settled property.
No costs. Consequently, connected miscellaneous petition is closed.
(G.R.S. J.,) & (M.J.R. J.,)
18.02.2025
NCC : Yes/No
Index : Yes / No
Internet : Yes/ No
MGA
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN, J.
and
M.JOTHIRAMAN, J.
MGA
To:
IV Additional District Judge,
Madurai.
18.02.2025
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