Ayyavu2. v. Gnanamuthu (died) & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 16.12.2009CoramThe Hon’ble Mr.Justice M.JEYAPAULSecond Appeal No.5 of 19961. Ayyavu2. ChellappanAppellantsvs. 1. Gnanamuthu (died)2. Rathinasamy3. Pappammal @ Manonmaniammal4. Subash5. Jaichandran6. Chandrasekaran7. Jaganmohan8. Kannammal (died)9. Mania10. Vijaya11. Vasantha 12. Kantha13. Jeevarathinam14. Amnieswara Gounder15. Chellammal16. Marappa Gounder17. G.Vimala Kasturi Bai18. G.Karunakaran19. G.Manoharan20. G.Jayakaran21. G.Chandralekha22. G.Banumathi23. G.Gnanathilagam24. N.Vijayakumar https://hcservices.ecourts.gov.in/hcservices/

25. N.Babu26. N.baby(RR 17 to 23 and 24 to 26 - brought on record as L.Rs of the deceased R1 and R8 respectively vide order dated 10.9.2009 made in C.M.P.Nos.1818 to 1823 of 2007 in SA 5/96)RespondentsFor appellants : Mr.Chinnasamy,Sr.Counsel forM/s.S.Haja Mohideen GisthiFor R14: Mr.S.RajasekarFor RR 13 to 23: Mr.A.VenkatesanPrayer:- Second Appeal against the judgment and decree of thelearned Principal District Judge, Erode dated 29.10.1993 made inA.S.No.22 of 1993 preferred against the judgment and decree of thelearned Principal Subordinate Judge, Erode dated 3.12.1992 made inO.S.No.380 of 1988.JUDGMENTThe plaintiffs are the appellants herein. 2. The suit is filed by the plaintiffs for partition andseparate possession of their 1/4 share in the suit properties. 3. The plaintiffs and the first defendant are brothers. Theyare sons of one Mahali alias Nallan. Mahali alias Nallan hadthree more brothers viz., late Ponnusamy, Jeevarathinam, the 12thdefendant herein and Gnanamuthu, the 13th defendant herein. Thesaid Ponnusamy died in the year 1976 leaving behind the seconddefendant and defendants 3 to 11 as his legal representatives. The14th defendant is a purchaser of a portion of the common propertypurchased from the 12th defendant. The 15th defendant is also apurchaser of a portion of the property from the deceased Ponnusamy.The 16th defendant is also another purchaser of a common portionfrom the 13th defendant. 4. The plaintiffs would contend that they are entitled to 1/4share in the suit properties, defendants 2 to 11 and the 15thdefendant are entitled to 1/4 share in common, 12th defendant and14th defendant are entitled to /14 share and 13th defendant and the15th defendant together are entitled to 1/4 share in common. Having https://hcservices.ecourts.gov.in/hcservices/ thus contended, the plaintiffs have sought for ¼ share in the suitproperties. 5. Except defendants 12 to 14, all other defendants remainedex part before the Trial Court. 6. It is the contention of the 12th defendant that theplaintiffs are not entitled to claim any share in the suit propertymuch less 1/4 share therein. There was a partition suit inO.S.No.25 of 1960 on the file of the Subordinate Court at Erode. Apreliminary decree was passed pursuant to the compromise struck bythe parties. Therefore, the plaintiffs have to work out theirshare by further prosecuting the suit in O.S.No.25 of 1960. The12th defendant also sold his share in item 1 to the 14th defendantwho is in possession and enjoyment of the same, it has beencontended. 7. The 13th defendant filed written statement contending thatthe suit is not maintainable and is barred by res judicata. Evenduring the life time of Muniya Maistry, he partitioned theancestral properties into five equal shares and gave each of hissons one such share. He executed a registered Will dated 4.1.1948in favour of his second wife Maral. The said Maral, in turn,settled the properties got under the Will in favour of her two sonsJeevarathinam and Gnanamuthu, defendants 12 and 13 herein. Theplaintiffs do not have any right over the said property. Theplaintiffs and the first defendant filed a suit in O.S.No.25 of1960 for partition of the suit properties into four equal shares.It was compromised and a compromise decree was passed on 15.2.1961.Therefore, the 13th defendant prays for dismissal of the suit. 8. The 14th defendant has contended in the written statementthat the plaintiffs are entitled to only 1/5 share in the suitproperty excepting the portion which was already dealt by theirfather. The plaintiffs have purposely suppressed the earlier suitwhich ended in a compromise preliminary decree. Therefore, thepresent claim of the plaintiffs' 1/4 share in the suit propertiesis unsustainable. The plaintiffs are barred from filing thepresent suit, it has been contended. 9. In the reply statement, the plaintiffs have contended thatthe first defendant herein, joining the other defendants, hadallowed the suit to be decreed conclusively. There was also undueinfluence or coercion on the first defendant who represented theplaintiffs when they were minors during the prosecution of the suit https://hcservices.ecourts.gov.in/hcservices/ in O.S.No.25 of 1960. As the said decree was not acted upon, norelevance could be placed upon the said decree. 10. On the side of the plaintiffs, the first plaintiff wasexamined as PW1 and two documents were marked on their side. The12th defendant was examined as DW1 and five documents were marked onhis side. 11. The Trial Court, having adverted to the materials onrecord, returned a finding that inasmuch as the final decreepetition was not at all filed by any of the parties, pursuant tothe preliminary decree passed in O.S.No.25 of 1960 on the file ofthe Sub Court, Erode, the present suit was not barred. The Willexecuted by Muniya Maistry in favour of his wife Maral and thealleged settlement deed executed by the said Maral in favour ofdefendants 12 and 13 were not produced. The Trial Court has heldthat the plaintiffs have established that they are entitled to 1/4share and therefore, they are entitled to preliminary decree asprayed for. 12. The first appellate court upset the findings of the TrialCourt on the ground that there was no reference made by theplaintiffs in the present suit with respect to the earlier decreein O.S.No.25 of 1960 wherein the plaintiffs were one of theparties. No relief for partition could be claimed unless the saiddecree staring at the plaintiffs was set aside. Therefore, thepreliminary decree in O.S.No.25 of 1960 was a bar for the presentsuit. Further, the plaintiffs, who were 19 years and 14 years oldrespectively at the time when preliminary decree in O.S.No.25 of1960 was passed by the Sub Court, Erode, chose not to challenge thesaid final decree within three years on attaining majority.Having thus found, the first appellate court non-suited theplaintiffs. 13. At the time of admission of the second appeal, thefollowing substantial questions of law were formulated by thiscourt for determination:-"1. Whether ignoring to consider an exhibit doesnot raise a question of law calling forinterference under Section 100 of the Code of CivilProcedure.2. The earlier decree has been obtained by fraudand hence whether section 44 of the Evidence Act isnot applicable to this case." https://hcservices.ecourts.gov.in/hcservices/

14. Learned Senior Counsel appearing for theappellants/plaintiffs would submit that the first appellate courtfailed to advert to the notice Ex.A2 dated 10.6.1966 issued by the12th defendant to the plaintiffs calling upon them to co-operate fordivision of the property. The 12th defendant alienated theundivided share in the suit property under Ex.B5 dated 19.2.1980 infavour of the 14th defendant. In the background of those documents,the learned Senior Counsel appearing for the appellants wouldsubmit that the preliminary decree was not acted upon. Further,the plaintiffs have now sought for 1/4 share in the suitproperties. The plaintiffs also have spoken to the collusivenature of the earlier decree for partition passed by the Sub Court,Erode. The judgment of the first appellate court, passed withoutany specific reference to Exs.A2 and D5, is liable to be set aside,he would submit. 15. The learned counsel appearing for respondents 17 to 23 whoare the legal representatives of the deceased 13th defendant wouldsubmit that the plaintiffs cannot maintain the present suit forpartition unless the preliminary decree for partition passed inO.S.No.25 of 1960 was set aside. Such a course also is not legallypermissible inasmuch as the plaintiffs who attained majority longback failed to challenge the preliminary decree passed in O.S.No.25of 1960 within three years from the date of attaining majority. Itis his further submission that there is no limitation for filing apetition for passing a final decree. Therefore, he would submitthat the first appellate court has rightly set aside the judgmentof the Trial Court and non-suited the plaintiffs. 16. There is no dispute to the fact that the first defendantherein, representing the plaintiffs, who were minors then,instituted a suit for partition in O.S.No.25 of 1960 before the SubCourt, Erode and obtained a compromise preliminary decree forpartition. As rightly pointed out by the learned counsel appearingfor the respondents, the plaintiffs have, for reasons best known,suppressed the partition decree already obtained in O.S.No.25 of1960 by the first defendant representing them. 17. When a competent court has passed a preliminary decree forpartition, a notice issued by one of the sharers claiming partitionas though there was no decree for partition in operation would notnullify the decree passed by the competent court. The fact remainsthat none of the parties chose to prefer any petition praying forpassing a final decree. Under such circumstances, it appears thatthe 12th defendant alienated his undivided share to the 14th https://hcservices.ecourts.gov.in/hcservices/ defendant under Ex.B5. Such an act of the 12th defendant would notfortify the stand of the plaintiffs that there was no partition ofthe suit properties. As final decree was not passed, the 12thdefendant chose to alienate his undivided share in the suitproperties to the 14th defendant. 18. This court in RAJA v. RADHA AMMAL (1988-1 LW 82 hascategorically held that a party to a decree is bound by the decreeunless and until the said decree is set aside by the competentcourt. Quite unfortunately, the plaintiffs have not sought for anyrelief for setting aside the preliminary decree passed by thecompetent court in O.S.No.25 of 1960. Further, no acceptableevidence was let in by the plaintiffs to establish that there wasundue influence and coercion on the first defendant, who,ultimately allowed the suit in O.S.No.25 of 1960 to be decreedconclusively. The plaintiffs who have not challenged thepreliminary decree in O.S.No.25 of 1960 and sought for settingaside the said decree cannot maintain the present suit forpartition. 19. That apart, it is found that the first plaintiff was aged19 years and the second plaintiff was aged 14 years old at the timewhen the preliminary decree in O.S.No.25 of 1960 was passed by thelearned Sub Judge, Erode on 15.2.1961. That would imply that theplaintiffs had become major long ago. If at all they have chosento challenge the decree which was obtained when they were minors,they should have challenged the decree within three years afterthey attained majority. Now, the said course was also completelyclosed as it is barred by limitation.20. The Supreme Court in HASHAM ABBAS SAYYAD v. USMAN ABBASSAYYAD (AIR 2007 SC 1077), has categorically held that a finaldecree proceedings may be initiated at any point of time and thatthere is no limitation provided therefor. 21. It is true that none of the parties to the preliminarydecree in O.S.No.25 of 1960 chose to initiate final decreeproceedings. Just because there was a whopping delay inapproaching the court for passing final decree pursuant to thepreliminary decree already passed, it cannot be said that thepreliminary decree has become inoperative. 22. The preliminary decree in O.S.No.25 of 1960, which was notset aside by the plaintiffs before the competent court of lawstill, stares at the plaintiffs. Therefore, the plaintiffs cannot https://hcservices.ecourts.gov.in/hcservices/ maintain the present suit for the very same relief of partition asthere is no limitation for initiating final decree proceedings. 23. The first appellate court has rightly held adverting tothe documents in the background of the oral evidence that theplaintiffs are not entitled to maintain the suit once again forpartition. Therefore, the judgment of the first appellate court isconfirmed and the second appeal is dismissed giving liberty toeither of the parties to initiate final decree proceedings pursuantto the preliminary decree already passed in O.S.No.25 of 1960.There is no order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrarssk. To1. Principal District Judge, Erode.2. Principal Subordinate Judge, Erode.+1cc to Mr.A.Venkatesan, Advocate Sr 69645+1cc to Mr.G.Duraichamy, Advocate Sr 69158TEJ(CO)km/21.1.S.A.No.5 of 1996