High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 04.06.2007CORAM:THE HON'BLE MR. JUSTICE P.JYOTHIMANIAppeal Suit No.1113 of 19931.Karuppanna Udayar2.Leelavathy ... Appellants/PlaintiffVs.1.Muthusamy2.Pappal3.Sethu Ammal4.Anjalai Ammal5.Aruvatham Ammal6.Arayammal7.Palanisamy8.AmmasiRespondents 1,7 & 8 remained expartebefore the Lower Court. Hence Notice to Respondents 1,7 & 8 not necessary.... Respondents/DefendantsPRAYER: First Appeal against the Judgment and decree of the PrincipalSubordinate Judge, Salem dated 29.04.1993 passed in O.S.No.245 of 1988. For Appellants: Mr.P.Jagadeesan For Respondents : Mr.R.Subramaniam for Mr.V.Krishnan for R6 R2 to R5 No appearance R1, R7 and R8 NDWJ U D G M E N TThe unsuccessful plaintiffs in the court below are the appellants.The plaintiffs are the husband and wife. Plaintiffs filed the suit forpartition and separate possession claiming 7/18th share in the suitproperty, which is the agricultural punja lands to the extent of 3.31acres situated in Ammani Kothanoor Village, Salem Taluk. https://hcservices.ecourts.gov.in/hcservices/

2. The case of the plaintiffs is that the first plaintiff and thefirst defendant are brothers and they are the members of the joint family.According to the plaintiffs, the father of the first plaintiff and thefirst defendant, Theerappa Udayar purchased the suit property on04.12.1945 from one Kulanthapillai, marked as Ex.A.1 . He settled onethird undivided share in the suit property in favour of the plaintiffs on03.04.1961 marked as Ex.A.4, which is a registered settlement deed.Another one-third undivided share was sold by Theerappa Udayar to oneVedaathal on 10.10.1957 marked as Ex.A.2, which according to the partiescontain a clause for reconveyance. The said Ex.A.2 was executed byTheerappa Udayar along with the first defendant. The first defendant hasrepurchased the same from Vedathaal under a sale deed dated 01.10.1964marked as Ex.A.3, the original of which was marked on the side of thedefendant as Ex.B.1. The first defendant who has purchased the shareunder the said Ex.A.3 is stated to have sold the same to the 6th defendant,under a sale deed dated 31.08.1987 marked as Ex.A.5. In respect of theremaining one third undivided share, the father of the first plaintiff andfirst defendant Theerappa Udayar continued to be in possession till hisdeath which was four years before the filing of the suit, the suit havingbeen filed on 15.03.1988. The said Theerappa Udayar's wife predeceasedhim and defendants 2 to 5 are the daughters of Theerappa Udayar. 3. According to the plaintiffs, the said Theerappa Udayar diedleaving behind him the first plaintiff, first defendant and defendants 2to 5 as his legal heirs and they are entitled for equal share in respectof the remaining one third share of the property which belonged toTheerappa Udayar. In addition to that as per the settlement deed executedby Theerappa Udayar in favour of the plaintiffs on 03.04.1961 under Ex.A.4they are entitled for another one third undivided share and therefore, theplaintiffs are entitled totally for 7/18th share in the suit properties.According to the plaintiffs, the first defendant has not only sold anundivided one third share which was repurchased by him from Vedathaal tothe 6th defendant on 31.08.1987 under Ex.A.5 but he has also sold anothershare to the 6th defendant for himself and on behalf of defendants 2 to 5on 07.09.1987 under Ex.A.6, the original of which was filed on thedefendant’s side as Ex.B.3. Since there was no division among thecoowners at any point of time, according to the plaintiffs, the vendorshave no right to convey any portion with the specific boundaries. Theplaintiffs have filed earlier a suit for declaration in O.S.No.629 of 1987against defendants 1 to 3 which was subsequently withdrawn on 04.12.1987,with liberty to file a fresh suit. The request of the plaintiffs todivide the properties have not been headed to and therefore, they havefiled the present suit for partition. The first defendant remainedexparte. https://hcservices.ecourts.gov.in/hcservices/

4. The defendants 2 to 5 have filed a memo before the Trial Courtgiving no objection for a decree passed as prayed for by the plaintiffs.The defendants 2 to 5 have also paid Court fee claiming 2/18th share in thesuit property. However, it remains the fact that in the suit theyremained exparte. The 6th defendant, who is the subsequent purchaser fromthe first defendant has filed written statement. While the relationshipbetween the plaintiffs and defendants 1 to 5 are admitted and also whileadmitting that Theerappa Udayar has settled one third share of theproperty in favour of the plaintiffs on 03.04.1961 under Ex.A.4 and alsoadmitting that another one third share measuring 1.10 acres was sold byTheerappa Udayar in favour of Vedathaal, which was subsequently purchasedby the first defendant and the same was sold to the 6th defendant on07.09.1987, it is the specific case of the 6th defendant that the saiddocument under which the 6th defendant has purchased the property containeda specific division with boundaries. It is also the case of the 6thdefendant that even one third share given by Theerappa Udayar to theplaintiffs on 03.04.1961 was with boundaries and it was based on the saidEx.A.3 and A.5 sale deeds dated 01.10.1964 and 31.01.1987, the 6thdefendant has taken the specific portion of 1.10 acres. It is the case ofthe 6th defendant that it is only in respect of the remaining 1.10 acreswhich was specified and was in possession of Theerappa Udayar on hisdeath, the same was succeeded equally by the first plaintiff, the firstdefendant and defendants 2 to 5. 5. According to the 6th defendant he has not only purchased the onethird specified share from the first defendant which was originally soldby Theerappa Udayar to Vedathaal and reconveyed in favour of the firstdefendant under Ex.A.3, he has also purchased the share of the firstdefendant and the shares of four daughters, namely, defendants 2 to 5 outof the remaining one third share of 1.10 acres left by Theerappa Udayarunder a sale deed dated 07.09.1987 marked as Ex.A.6 original of which wasmarked as Ex.B.3 on the defendant’s side. Therefore, according to the 6thdefendant the said defendant has purchased the specified portion, whilethe plaintiffs have been given properties under the settlement deed andput in possession and therefore, the plaintiffs are not entitled to anypartition with respect to 1.10 acres of land. According to the 6thdefendant there has been a partition earlier and daughters of TheerappaUdayar and the first defendant have already sold, their properties infavour of the 6th defendant, who is in possession. It is also the case ofthe 6th defendant that the suit is barred by rejudicata, in view of thedecision in earlier suit filed by the plaintiffs in O.S.No.629 of 1987.On the basis of the above said pleadings the parties went to trial. Thefirst plaintiff was examined as P.W.1 and on the side of the plaintiffsdocuments Exs.A.1 to A.10 were marked. On the side of the defendant’ssince defendants 1,7 and 8 have remained exparte and defendants 2 to 5having filed a memo as stated above, have not chosen to appear andtherefore they were set exparte only the 6th defendant has appeared and hewas examined as D.W.1 apart from another witness on his side as D.W.2 anddocuments B.1 to B.10 were marked on the side of the 6th defendant. https://hcservices.ecourts.gov.in/hcservices/

6. The Trial Court has framed the issues, namely, 1) Whether the plaintiffs are entitled for decree for partition,2) Whether the decision in O.S.No.629 of 1987 on the file of the DistrictMunsiff Court, Salem would act as rejudicata for the present suit3) Whether 7 and 8th defendants are necessary parties4) Whether court fee has been properly paid and 5) To what relief the plaintiffs are entitled7. The Trial Court having analyzed the pleadings, evidence andvarious documents relied upon by the parties has concluded that there wasalready a partition among the parties and separate possession andtherefore, there was no question of fresh partition, apart from findingthat the properties sold to the 6th defendant and settlements made to theplaintiffs by Theerappa Udayar were with specific boundaries and alsofinding that the suit has been filed by the plaintiffs in collusion withthe first plaintiff’s sisters, namely, defendants 2 to 5 and in view ofthe same, the suit for partition was dismissed. It is as against the saidjudgement of the Trial Court, the present appeal is filed by theplaintiffs. 8. Mr.Jagadeesan, learned counsel appearing for the plaintiffs wouldsubmit that there was no division between coowners at any point of timeeven during the time when Theerappa Udayar was living. He would submitthat the very fact that the Theerappa Udayar and the first defendant havesold the undivided one third share to Vedathaal on 10.10.1957 under Ex.A.2without specific extent would show that there was no partition. Accordingto him, the said Ex.A.2 was executed not only by Theerappa Udayar but alsoby the first defendant being one of his son, even though it is admittedthat under reconveyance dated 01.10.1964 by which the first defendant haspurchased the properties from Vedathaal along with the first defendant’sfather Theerappa Udayar contains specific recitals regarding 1.10 acres.He would also submit that under the sale deed given in favour of the 6thdefendant dated 07.09.1987 which was entered by the first defendant alongwith his sisters, namely, defendants 2 to 5 as their power agents markedas Ex.A.6 and the sale deed in respect of one third share by the firstdefendant to the 6th defendant dated 31.08.1987 marked as Ex.B.2, theycontain false recitals as if there was a division. Therefore, accordingto the learned counsel the title of the 6th defendant will be only anundivided share. In respect of the plea of res judicata it is thecontention of the learned counsel for the appellant that since in theearlier suit in O.S.No.629 of 1987, liberty was given to file a fresh suitand the said suit was withdrawn without adjudication on 04.12.1987 therewas no decision on merit and therefore, the question of res judicata doesnot arise. https://hcservices.ecourts.gov.in/hcservices/

9. On the other hand, Mr.R.Subramanian, learned counsel appearingfor the 6th respondent would submit that the factum of partition in thefamily is specifically stated in the sale deed executed by TheerappaUdayar along with the first defendant to Vedathaal on 10.10.1957 underEx.A.2. That apart it is his contention that the first plaintiff himselfhas admitted that the specific property has been sold to the 6th defendant.It is also his contention that the various documents marked as Ex.A.5, B.2and B.3 contain specific boundaries and the same has been considered bythe Trial Court and according to the learned counsel since the 6thdefendant is a purchaser, he can only be expected to prima facie besatisfied that there was a partition in the family and he cannot beexpected to prove the partition in the strict sense especially when in thepresent case, the partition had been oral. He would also submit that thesuit itself is filed in collusion by the plaintiffs, defendants 2 to 5 whoremained exparte, but at the same time filed a memo stating as if they areentitled for 2/18th share, especially through their brother, the firstdefendant have executed sale deed in respect of their portion in favour ofthe 6th defendant under Ex.B.3. 10. After hearing the submission made by the learned counsel for theappellants as also the respondents and going through the pleadings,evidence and judgement the following points arises for consideration inthis first appeal, Whether the plaintiffs are entitled for partition and allotment of 7/18thshare has claimed by them?Whether the suit is hit by res judicata? and Whether the judgement of the Trial Court is liable to be set aside?11. On the point of the plea of res judicata, it is admitted thatthe first plaintiff has filed the previous suit in O.S.No.629 of 1987 onthe file of the District Court, Salem for a declaration of title and forpermanent injunction against defendants 1 to 3 and the same was withdrawnon 04.02.1987 with liberty to file a fresh suit on the same cause ofaction. The withdrawal was due to the reason that there were some formaldefects. Even though the 6th defendant would state in the writtenstatement that there was an earlier decision in O.S.No.629 of 1987, it isseen that the first plaintiff has filed I.A.No.3462 of 1987 in O.S.No.629of 1987 praying for withdrawal of the suit to file a fresh suit on thesame cause of action under Order 23 Rule 1 of Code of Civil Procedure, andthe same after giving notice to the other side stood allowed on 04.12.1987as it is seen under Ex.A.7. It is also not the case of the 6th defendantthat there was any decision in the suit on merit. In view of the abovesaid facts, I do not think that the present suit is hit by the principlesof res judicata. 12. The next point to be considered is about the eligibility of theplaintiffs to have the decree for partition and the validity or otherwiseof the judgement of the Trial Court. A close reading of the judgement ofthe Trial Court shows that in fact the Trial Court has not only considered https://hcservices.ecourts.gov.in/hcservices/ every one of the documents filed and also evidence of the parties and hascome to a conclusion that there was an earlier partition among the firstplaintiff and the defendants 1 to 5 and that was the decision arrived atbased on the construction of the terms of various documents producedbefore the Court below. That apart, the Trial Court has also consideredthe evidence of P.W.1 who himself has admitted that the sale to the 6thdefendant was with a specific portion. A reference to the writtenstatement filed by the 6th defendant, shows that even though it is truethat there is no specific pleading that there was a oral partition amongthe first plaintiff and defendants 1 to 5, it is the clear case of the 6thdefendant that the specific properties have been allotted to theplaintiffs by Theerappa Udayar in respect of the one third share withboundaries. Likewise, it is the specific case of the 6th defendant in thewritten statement that in respect of the other one third share which wassold to Vedathaal, in the deed of reconveyance under which Vedathaal alongwith the father of the first defendant Theerappa Udayar have sold to thefirst defendant under Ex.A.3 sale deed dated 01.10.1964 and the subsequentsale deed given by the first defendant in favour of the 6th defendant underEx.A.5 dated 31.08.1987, specific boundaries have been given andtherefore, it is the case of the 6th defendant that the properties havebeen specifically allotted to the parties and there was no question ofpartition. Based on the said pleadings, if we refer to the documents, ascorrectly found by the Court below it can be safely presumed that therehas been a prior partition. 13. At the out set it should be remembered that it is an admittedcase that originally the entire extent of 3.30 acres of punja lands werepurchased by Theerappa Udayar as his absolute property under Ex.A.1 saledeed dated 04.12.1945. Therefore, there is no dispute that the propertyabsolutely belonged to Theerappa Udayar and it is nobody’s case that thepurchase under Ex.A.1 was from ancestral nucleus. The said TheerappaUdayar along with one of his sons namely, the first defendant executes asale deed in favour of Vedathaal in respect of the one third share on10.10.1957 marked as Ex.A.2. The preamble of the said Ex.A.2 whilementioning about the said Theerappa Udayar and the first defendant asvendors in the subsequent recital shows clearly that Theerappa Udayar gotthe property by way of sale while the first defendant got it by way ofpartition. In the said Ex.A.2 Theerappa Udayar is stated as a first partyand the first defendant is stated as a second party among the vendors.The relevant portion of Ex.A.2 as found by the Trial Court which states ",jd; moapy; fz;l brhj;Jf;fs; v';fspy; 1 ,yf;fkpl;ltUf;F fpuak; K:ykha[k; jPug;gcilahh;. 2 ,yf;fkpl;ltUf;F (first defendant-Muthusamy) ghfg;gphptpidg;goghj;jpa brhj;J ,e;j brhj;Jf;fspd; nghpy; K:d;wpy; xU g';F ghf epyj;jpy; ntW ahUf;Fk;vt;tpj tpy;y';f';fSk; bra;atpy;iy vd;W cWjpaha; brhy;Yfpnwhk;/"14. A further recital in the said Ex.A.2 shows that even in respectof the coconut trees there has been a division with the first defendant.In addition to the contents of Ex.A.2 which was executed during the time https://hcservices.ecourts.gov.in/hcservices/ of the father Theerappa Udayar which gives more credit to the saiddocument, the first plaintiff as P.W.1 himself admits that pursuant toEx.A.2 sale deed the purchaser under the said document Vedathaal was givenpossession. In fact the first plaintiff further states that till thefirst defendant got back the property from Vedathaal in the followingwords: "vd; Iah tHf;F bkhj;j brhj;jpYk; 1/3 ghfj;ij mjhtJ xU Vf;fh; 10 brd;ilntlhj;jhYf;F tpw;wt[ld; me;j brhj;ij mtUf;F RthjPdk; tpl;lhh; vd;why; rhpjhd;/"15. He would further admit that the portions sold to Vedathaal wasthe portion given to the share of his brother the first defendant "ntlhj;jhYf;F vd; Iahthy; tpw;f;fg;gl;l ghfk; vd; jk;gpf;F vd; Iah bfhLj;jghfkhFk;/"16. He would also further admit that the reason for his not joiningunder Ex.A.2 along with Theerappa Udayar and the first defendant was thatthe said portion was not allotted to him. Further in respect of the otherone third portion which was settled by Theerappa Udayar in favour of theplaintiffs under Ex.A.4 settlement deed dated 03.04.1961, while in theplaint the plaintiffs have admitted that Theerappa Udayar has settled onethird undivided share in the suit property in favour of the plaintiffs on03.04.1961 under a registered settlement deed, the first plaintiff in hisevidence as P.W.1 has specifically admitted that the said settlement deedEx.A.4 contains specific boundaries and pursuant to the settlement deed,the plaintiffs have been put in possession by Theerappa Udayar in thefollowing words: "vd; Iah xU Vf;fh; gj;J 10 brd;il vdf;Fk; vd; kidtp ngUf;Fk; brl;oy;bkd;LvGjptpl;lhh;. mij mDrhpj;J v';fsplk; RthjPdk; tpl;Ltpl;lhh;/ mt;tpjk; brl;oy;bkl;Lthapyhf v';fSf;F fpilj;jJ vd; Iahthy; v';fSf;F RthjPdk; tplg;gl;l brhj;ijmd;WKjy; ,d;W tiu ehd; RthjPdj;jpy; ,Uf;fpnwd;"17. Likewise, in respect of the remaining one-third share held byTheerappa Udayar before his death, it is admitted by P.W.1 that after thedeath of the father his sisters, namely, defendants 2 to 5 have executed apower of attorney in favour of the first defendant in respect of their 72cents of lands stating that the said power also contains the specificextent of the said 72 cents with boundaries"vd;rnfhjhpfSf;F ghj;jpag;gl;ljhf brhy;Yk; me;j 72 brd;il bghWj;J 1Mk;gpujpthjpf;F gth; gj;jpuk; vGjpf;bfhLj;J cs;shh;fs;/ me;j gth; gj;jpuj;jpw;F efy; vLj;Jehd; ghh;j;Js;nsd;/ Kj;Jrhkp Muhak;khSf;F vGjpf;bfhLj;j gj;jpuj;jpy; me;j 72brd;Lf;Fk; ehd;F g[w mj;Jf;fSk; brhy;yg;gl;Ls;sd vd;why; rhpjhd;/" https://hcservices.ecourts.gov.in/hcservices/

18. Not only on the basis of the contents of Ex.A.2 and alsospecific admission of the first plaintiff as P.W.1 as a witness showsabundantly as found by the Court below that the properties have alreadybeen divided and enjoyed separately by parties. Further, the documents,namely, Ex.A.5, B.2 and B.3 all contain the schedules with specificboundaries. In such circumstances, as found by the court below, it isclear that there has been an earlier partition and therefore, the questionof further partition under the suit does not arise. As to whether theearlier partition was equal, is not under dispute. There is one othercircumstance as found by the Court below that after the sale, the 6thdefendant has been enjoying specific properties by obtaining patta in hername as it is seen under Ex.B.4 especially relating to the remaining one-third share held by the father Theerappa Udayar, namely, to the extent of1.10 acres to the total extent of 1.65 acres which includes 1.10 which waspurchased by the first defendant from Vedathaal along with TheerappaUdayar and the remaining 36 and 19 cents which forms part of the share ofthe daughters, namely, defendants 2 to 5 which was purchased by the 6thdefendant under Ex.B.3 dated 07.09.1987. While the said 1.10 acres soldby the first defendant was purchased under Ex.B.2 dated 31.08.1987 whichalso contains specific boundaries. 19. In view of the above said facts and circumstances of the case,and on a close reading of the judgement of the court below, it is clearthat there is absolutely no illegality or perversity in the judgement ofthe court below, which deserves any interference by this Court. In viewof the same, the judgement and decree of the Trial Court is confirmed andthe first appeal stands dismissed with cost. nbjSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo,1. The Principal Subordinate Judge, Salem.2. The Section Officer, V.R. Section,High Court, Madras.+1 cc to Mr.P.Jagadeesan, Advocate Sr.No.32002.BV(CO)dcp/11.7.07A.S.No.1113 of 1993