Venugopal2.Kannan3.Sundaramoorthy v. M.Gopalakrishnan

THE MADURAI BENCH OF MADRAS HIGH COURTDATED : 22.01.2009CORAMTHE HONOURABLE MR. JUSTICE A.C.ARUMUGAPERUMAL ADITYANCRP.NPD.No.1279 of 2002 andC.M.P.No.13638 of 20021.Venugopal2.Kannan3.Sundaramoorthy ... Petitioners / Defendants 16 to 18Vs.1.M.Gopalakrishnan2.R.Sulochana3.P.R.Ravichandran4.R.Rajasekaran5.S.Umasekar... Respondents 1 to 5 / plaintiffs 2, 4-76.G.Ramulu7.G.Gopal Reddy8.G.Purushothama Reddy9.Annapurni Ammal10.Syadanibee11.Mohammed Hussain12.Minor Abdul Kudus13.Bee14.Payeareo15.Kairunnissa16.Minor Aisayama17.Manor18.Parijatham19.Parimala Bai20.Chandra Bai21.Vatsala Bai22.Minor Tilak23.Minor Indira (Minors rep by mother and natural guardian 7th respondent)24.Minor Pannerselvam25.Minor Sapathi26.Minor Victor https://hcservices.ecourts.gov.in/hcservices/

27.Minor Prem (Minors 24 to 27 are represented by their mother and natural guardian 15th respondent)28.Sakunthala Ammal29.Yasodammal30.Kauselya... Respondents 6 to 30 / Defendants 1-4, 7-15 & 19-30. Prayer:-This Civil Revision Petition has been filed under Section 115of CPC against the order dated 26.08.2002 in REP.No.165 of 1981 inTPT.SC.OS.No.81 of 1964 on the file of the Court of District Munsif,Tirupattur, Vellore.For Appellants : Mr.AR.L.Sundaresan, Senior Counsel for Mr.K.N.Natarajan, AdvocateFor Respondents : Mr.S.Parthasarathy, Senior Counsel for Mr.P.S.Kothandaraman, Advocate (For R1 to R5) **** ORDER This Civil Revision Petition has been directed against the orderpassed by the Execution Court in REP.No.165 of 1981 inTPT.SC.OS.No.81 of 1964 on the file of the Court of District Munsif,Tirupattur. O.S.No.79 of 1945 was filed by one Meenammal forpartition before the Court of Subordinate Judge, Vellore. The saidsuit has subsequently been transferred to the Subordinate Court,Tirupattur and renumbered as O.S.No.81 of 1964. A decree has beenpassed in the said suit and the same was challenged in an appeal inA.S.No.145 of 1960 before this Court wherein it was held that theplaintiffs 2 & 3 are entitled to one half share in the plaintschedule property and remaining one half belongs to D28 to D30 andthere is also a direction in A.S.No.145 of 1960 as to the effect thatD28 to D30 have to pay necessary Court Fees for partition andseparate possession of their half share in the plaint scheduleproperties. The matter went to the Honourable Apex Court in CivilAppeal No.1471 of 1967. There was an compromise entered into betweenthe plaintiffs 2 & 3 and D28 to D30 – who are the respondents 19 to21 in Civil Appeal NO.1471 of 1967 before the Honourable Apex Court.As per the terms of the memo of compromise Respondents 19 to 21 / D28to D30 have conveyed their half share in favour of the plaintiffs 2 &3 in lieu of a sum of Rs.26,500/-. The said sum of Rs.26,500/- wasalso paid by the plaintiffs to Respondents 19 to 21 / D28 to D30 as https://hcservices.ecourts.gov.in/hcservices/ seen from the orders of the learned District Munsif in REP.No.165 of1981 in TPT.SC.OS.No.81 of 1964. 2.The learned senior counsel for the revision petitionerchallenges the impugned order of the learned District Munsif inREP.No.165 of 1981 in TPT.SC.OS.No.81 of 1964 on two grounds one isthat the defendants 28 to 30 have not paid the Court fees fordeclaration of their share as per the preliminary decree before orafter the compromise decree was passed by the Honourable Apex Courtin Civil Appeal No.1471 of 1967 and that the mortgage amount ofRs.1,300/- was not paid by the plaintiffs. The learned SeniorCounsel appearing for the respondents would focus the attention ofthis Court to the counter filed by the revision petitioners /defendants 16 to 18 in EA.No.117 of 1974 in O.S.No.81 of 1964,wherein at paragraph 8 they admit that the respondents / plaintiffs 2& 3 have deposited the mortgage amount of Rs.1,300/- on 24.01.1974.So the contentions of the learned senior counsel for the revisionpetitioners that the respondents / plaintiffs 2 & 3 cannot executethe decree on the ground of non-payment of the mortgage amount ofRs.1,300/- falls to the grounds.3.The next contention raised by the learned senior counsel forthe revision petitioner is that even though the plaintiff have paidthe court fee subsequent to the filing of the suit in the year 1955under I.A.No.1370 of 1955 on 26.9.1955, the defendants 28 to 30, whohave been declared one half share in A.S.No.145 of 1960, have notpaid the due Court fees for the declaration of their one half shareeven either before the compromise decree was passed inTPT.SC.OS.No.81 of 1964 or after the passing of the compromise decreewithin the period of limitation as per the Article 136 of the IndianLimitation Act. In support of this contention the learned SeniorCounsel for the revision petitioners also bassed his reliance on AIR2001 SC 3404 (Hameed Joharan Vs. Abdul Salam). The facts of the saidcase in brief are that it was contented on behalf of the appellantthat the execution petition filed by the decree holder is barred bylimitation under Article 136 of the Limitation Act. A preliminarydecree was passed for partition in the said suit on 8.6.1969,followed by the final decree on 20.11.1970, wherein the parties weredirected to furnish the stamp papers. In the mean while, theoriginal decree holder expired and his LRs were impleaded and theyfurnished the non-judicial stamp papers and an execution petition wasfiled on 21.05.1984 with engrossed stamp papers dated 26.3.1984.Only under such circumstances, it was contented by the appellantstherein / respondents-defendants in that suit that the EP itself isbarred by limitation under Article 136 of the Limitation Act. Onlyunder such circumstances, the Honourable Apex Court has laid down theratio decidendi in the following lines:- https://hcservices.ecourts.gov.in/hcservices/ "The language used by the legilature in Article 136 if readin its proper perspective to wit : 'when the decree or orderbecomes enforceable' must have been to clear up anyconfusion that might have arisen by reason of the user ofthe expression 'the date of the decree or order which wasused in the earlier Act. The intention of the legislaturestands clearly exposed by the language used therein viz. Topermit twelve year certain period from the date of thedecree or order. It is in this context that a decision ofthe Calcutta High Court in the case of Biswapati Dev Vs.Kennsington Stores, AIR 1972 Cal 172 wherein the learnedSingle Judge in no uncertain terms expressed his opinionthat there cannot be any ambiguity in the language used inthe third column and the words used therein wit: 'when thedecree or order becomes enforceable should be read in theirliteral sense. We do feel it expedient to lend ourconcurrence to such an observation of the learned SingleJudge of the Calcutta High Court. The requirement of theLimitation Act in the matter of enforcement of decree isthe date on which the decree becomes enforceable or capableof being enforced_ what is required is to assess thelegislative intent and if the intent appears to be otherwiseclear and unambiguous, question of attributing a differentmeaning other than the literal meaning of the words usedwould not arise. It is in this context, we also do feel itinclined to record our concurrence to the observations ofthe full Bench of the Bomby High Court in Subhash GanpartraoButy Vs.Maroti Krishnaji Dorlikar, AIR 1975 Bom 244. TheFull Bench in the decision observed (para 7):"............. It is the duty of the Court tointerpret the language actually employed and todetermine the intention of the legislature fromsuch language and since thre is no ambiguity aboutthe language actually employed, neither therecommendation of the Law Commission nor the aimsand object as set out in the Statement of Objectsand Reasons can be brought in aid or can beallowed to influence the natural and grammaticalmeaning of the Explanation as enacted by theParliament."There cannot be two opinion with regard to the ratio laid down by theHonourable Apex Court in the said Judgment. But in this case a finaldecree was passed in the suit on 24.09.1966 by the learnedSubordinate Judge, Tirupattur in I.A.No.264 of 1964 in O.S.No.81 of1964. Before passing of the final decree, a compromise was enteredinto between the plaintiffs 2 & 3 on one hand and D28 to D30 on the https://hcservices.ecourts.gov.in/hcservices/ other. The said final decree application was filed by the plaintiffs2 & 3. It is seen from paragraph 2 to the final decree in I.A.No.264of 1964 in O.S.No.81 of 1964 that the shares of D28 to D30 (halfshare) have been allotted as per the Commissioner's report and planfiled therein. So the contention of the learned Senior Counsel forthe revision petitioners that the defendants 28 to 30 have not paidtheir Court fee for partition of their share within the timeprescribed under law and that since the plaintiff have purchased thehalf share of D28 to D30 under the memo of compromise before theHonourable Apex Court, is not entitled to execute the same under thepresent R.E.P.No.165 of 1981 in TPT.SE.OS.No.81 of 1964 holds nowater.4.The other contention raised on behalf of the learned SeniorCounsel for the revision petitioners is that the non-judicial stamppapers were not furnished by the defendants 28 to 30 as directed inthe final decree. A perusal of the final decree in I.A.No.264 of1964 in O.S.No.81 of 1964 dated 24.09.1966 at the end also revealsthat the plaintiffs have furnished non-judicial stamp papers to thevalue of Rs.79/-.5.Relying on Article 45 of the Indian Stamp Act, 1899, thelearned Senior Counsel appearing of the respondents would contendthat the non-judicial stamp papers furnished by the plaintiff aloneis enough for engrossing the final decree and there is no need forD28 to D30 to furnish a separate non-judicial stamp papers forengrossing their share separately. Article 45 of the Indian StampPapers Act,1899 reads as follows:-"Partition_ Instrument of (as defined by Section 2(15). Thesame duty as a Bottomery Bond (No.16) for the amount of thevalue of the separated share or shares of the property.N.B._ The largest shae remaining after the property ispartitioned (or if there are two or more shares of equalvalue and not smaller than any of the other shares, then oneof such equal shares) shall be deemed to be that from whichthe other shares are separated:(a)when an instrument of partition containing an agrement todivide property in severalty is executed and a partition iseffected in pursuance of such agreement, the duty chargeableupon the instrument, effecting such parition shall bereduced by the amount of duty paid in respect of the firstinstruent but shall not be less than two rupees fifty paise;(b)where the land is held on Revenue settlement and payingthe full assessment or is an Inam land assessed under theTamil Nadu Inams (Assessment) Act, 1956 (Tamil Nadu Act XLof 1956) the value for the purpose of duty shall be https://hcservices.ecourts.gov.in/hcservices/ calculated at twenty five times the annual revenue;(c)Where a final order for effecting a partition passed byany Revenue Authority or any Civil Court, or an award by anarbitrator directing a partition, is stamped with the stamprequired for an instrument of partition, and an Instrumentof partition in pursuance of such order or award issubsequently executed, the duty on such instruent shall notexceed two rupees fifty paise."So, as seen from the final decree itself, the plaintiffs havefurnished the required non-judicial stamp papers for engrossing thedecree.6.The learned Senior Counsel appearing for the respondent relyingon 2000(6) ALT 769 (Sowjanya and another Vs. Chinna Chikkanna) wouldcontend that once the plaintiffs have furnished the non-judicialstamp papers for engrossing the final decree there is no need forother shares viz. D28 to D30 to furnish separate non-judicial stamppapers for engrossing the final decree. The facts of the said casein brief are that the plaintiffs filed the suit against their fatherfor partition of joint family property. They subsequently enteredinto a compromise, under which family properties were partitionedinto two shares, one was allotted to the plaintiffs jointly whichwas described as 'A' schedule and other share was allotted to thedefendant / father of the plaintiffs which was described as 'B'schedule. For preparing the final decree non-judicial stamp paperwas called for by the Court. The Court has directed the plaintiffs todeposit non-judicial stamp duty of Rs.1,153/- after giving credit tostamp duty of Rs.180/- already deposited. The said order on thedocket was chellenged before the High Court of Andhra Predesh inCRP.No.1473 of 2000, wherein it was held as follows:-"It is not disputed that the arrangement between theparties, which has been recorded in the compromise petition,on the basis of which a decree has been passed by the Court,is a partition, which falls under item 40 of Schedule I-A.The stamp duty payable on such deeds is the same as BottomryBond shown at item 14 for the amount or the market value ofthe separated share or shares of the property. The suitproperty has been partitioned into two shares. Admittedly,the larger share described in Schedule-A has been allottedto the plaintiffs and the smaller share has been allotted tothe defendant-father. In view of the definition of theseparatd share as given in the note under this entry in theschedule, the largest share remaining after the property ispartitioned shall be deemed to be that from which the othershares are separated. In this case as the property has been https://hcservices.ecourts.gov.in/hcservices/ partitioned into only two shares the bigger shall be deemedto be one from which the other share has been separated.Thus, obviously, it is the smaller share, which in this caseshall be treated as separated share. The contention of thelearned Government Pleader for Revenue that in this caseinasmuch as the suit property has been partitioned into onlytwo shares and inasmuch as the plaintiffs wanted to separatetheir shares from the joint family property, it s the sharewhich has been allotted to the plaintiffs, which must beconstrued as the separated share cannot be countenanced inview of very specific definition of the separated shar asincorporated in the note under the said entry."It is pertinent to be noted in this case at this juncture that so farthe Government has not objected to for passing final decree on theground that necessary non-judicial stamp papers were not filed by theplaintiffs in to the suit. So far as these revision petitionersherein, who are D16 to D18, are concerned as per the decree passed inA.S.No.145 of 1960 have been asked to demolish the superstructure putup by the defendants and to handover the same to the plaintiffs sincethey are only mortgagees. As I have already referred to, themortgage amount of Rs.1,300/- has also been deposited by theplaintiffs. EP filed by the plaintiffs in REP.No.165 of 1981 inTPT.SC.OS.No.81 of 1964 is not barred under Article 136 of theIndian Limitation Act. Under such circumstances, I am of the viewthat there is no reason to set aside the order of delivery passed bythe Execution Court in REP.No.165 of 1981 in TPT.SC.OS.No.81 of 1964on the file of the Court of District Munsif, Tirupattur. 7.In fine, the Civil Revision Petition is dismissed confirmingthe order of the Execution Court in REP.No.165 of 1981 inTPT.SE.OS.No.81 of 1964 on the file of the Court of District Munsif,Tirupattur. Connected Miscellaneous Petition is closed. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. ssv https://hcservices.ecourts.gov.in/hcservices/ ToThe District Munsif, Tirupattur.+ 10 CC To Mr.P.S.Kothandaraman, Advocate SR NO.2990+ 3 CC To Mr.K.N.Nataraaj, Advocate SR NO.2978CRP.NPD.No.1279 of 2002and C.M.P.No.13638 of 2002GV {CO}TP/23.1.2009