V.K.John v. W.S.Seetharam

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 17.04.2008CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE M.VENUGOPALO.S.A. NOS. 301 TO 303 OF 2007V.K.John..Appellant in all the appeals / Plaintiff in Cs 423/95- Vs -W.S.Seetharam..Respondent in OSA 301/07 / 3rd Respondent in Cs 423/951. Prema Chandrasekar2. W.S.Seetharam..Respondents in OSA 302/07 / Proposed 4th defendant & 3rd defendant in Cs 423/951. T.R.T.Thirumalvasi2. W.S.Seetharam..Respondents in OSA 303/07 / 4th defendant& 3rd defendant in Cs 423/05Appeals filed against the order dated 24th Sept., 2007, passed bylearned single Judge in Application Nos. 5707, 5857 and 5958 of 2007 inc.S. No.423 of 1995.For Appellant: Mr. Abraham Markose for M/s.King & PatridgeFor Respondents: Mr.Prakash Goklaney for R-1 in OSA 302/07 Mr. P.C.Harikumar for R-1 in OSA 303/07 Mr. W.S.Seetharam – Party-in-Person in OSA 301/07 & R2 in OSA 302 & 303/07.COMMON JUDGMENTS.J.MUKHOPADHAYA, J.All the three appeals having been preferred by common appellantagainst common order, they were heard together and disposed of by thiscommon judgment.2. The suit, C.S. No.423/95 was preferred by plaintiff, V.K.John(appellant herein) for partition by meets and bounds of the propertiesof Late Mrs.Elie John, situated at Nungambakkam, Chennai and Kodaikanalas described in Schedule 'A', 'B', 'C' and 'D' of the plaint. In the https://hcservices.ecourts.gov.in/hcservices/ said suit, an application No.5707/07 was filed by appellant/plaintiffamending the relief claiming for the entire property. Two otherapplications were preferred, one by Prema Chandrasekar (Appln.No.5857/07) and another by T.R.T.Thirumalvasi (Appln. No.5958/07) forimpleading them as proposed defendants.3. Application No.5707/07 filed by the appellant/plaintiff amendingthe relief claiming the entire property on the ground that after thedeath of the defendant, Lilie John, the entire property devolved on him,was dismissed by learned Judge by impugned order dated 24th Sept., 2007,giving rise to O.S.A. No.301/07. The other two application Nos.5857 and5958/07 were filed by the proposed defendants, they claimed property onthe basis of their respective Will purported to have been executed bythe deceased Appu John, who was the 1st defendant to the suit. The saidapplications having been allowed, the other two appeals, O.S.A. Nos.302and 303/07 have been preferred by the plaintiff (appellant herein).4. For proper appreciation of the claim, learned counsel for theappellant/plaintiff relied on the family tree of Mrs.Elie John, as givenbelow :-Mrs.Elie John (Decd.) Wife of Dr. V.K.John (Decd.)K. John (aliasBabu)* eldest son* deceased on20.12.85* married to MaryK.John (alias Lucy –deceased on 08.10.1989)Leelie Seetharam(2nd Defendant)* Daughter* Deceased on24.04.01* Married to oneT.N.Kuriakose &Divorced* Married again toone W.S.Seetharamwho left her in 1965 andis now the 3rd defendant* Leelie –issuelessAppu John(1st Defendant)* Youngest son* Deceased on28.07.07* Unmarried andwithout issues* Survived by theplaintiff V.K. John who ishis natural legalheirV.K. John (aliasLulu)(Plaintiff)Son of K.John andgrandson of ElieJohn https://hcservices.ecourts.gov.in/hcservices/

5. At this stage, it is relevant to state that W.S.Seetharam, whowas impleaded as 3rd defendant, appeared in person and disputed theaforesaid family tree to the extent where it is stated that LilieSeetharam (2nd defendant), after second time marriage with W.S.Seetharam,left him in 1965. According to W.S.Seetharam, there was no separationbetween Lilie Seetharam and him and such statement that Lilie Seetharamleft him (W.S.Seetharam) is incorrect.6. Admittedly, the suit was preferred by the plaintiff (appellantherein) in 1995 claiming one-third share of the property. After thedeath of Lilie John, who died on 24th April, 2001, the plaintiff claimedfor amendment, as according to him he was entitled for the half of theshare after the death of Lilie John, who died without any heir. Thesaid amendment was allowed earlier, but on an application, W.S.Seetharamwas impleaded as 3rd defendant, who claimed to be the legal heir of LilieJohn.Appu John died on 28th July, 2007. It is only thereafter all theaforesaid three applications were preferred and all of them claimed AppuJohn's share in their favour. The plaintiff, in his applicationNo.5707/07 claimed the share of Appu John on the ground that he diedunmarried without any issue and the plaintiff is the only legal heirand, thereby, he claimed for full share of the suit property.7. In this regard, we have heard the learned counsel for the partiesand W.S.Seetharam, 3rd defendant in person. It was accepted by learnedcounsel for the appellant/plaintiff that such prayer for amendmentclaiming full share of the property could not have been allowed in thepartition suit, which will change the nature of the suit from apartition suit to a suit for declaration of title with regard to thesuit property. In this background, learned counsel for theappellant/plaintiff submitted that the appellant may be permitted towithdraw O.S.A. No.301/07 keeping his right open to make such claim inthe partition suit after determination of the share; that means, he mayclaim that he is entitled to the share of Appu John.8. Having heard the learned counsel for the parties, while we are ofthe view that learned Judge, by impugned common order dated 24th Sept.,2007, rightly rejected application No.5707/07 as was filed by theappellant/plaintiff, which otherwise would have changed the nature ofthe suit, we allow the appellant to withdraw O.S.A. No.301/07 withliberty to make such claim in respect of share of Appu John, afterdetermination of the share, subject to objection as may be raised by thedefendants to the suit.9. So far as O.S.A. No.s302 and 303/07 are concerned, learnedcounsel for the appellant/plaintiff submitted that both the applicantsclaimed their right under a Will purported to have been executed by AppuJohn. One Will is dated 29th April, 2002 in respect of the entireproperty bequeathed by Appu John in favour of Prema Chandrasekar and theother Will is dated 3rd June, 2007, in favour of T.R.T.Thirumalvasi. Itwas submitted that there cannot be two Wills executed by Appu John, that https://hcservices.ecourts.gov.in/hcservices/ too, with regard to the total property when he had only one-third share.Further, according to counsel for the appellant/plaintiff, no such claimcan be entertained nor determination can be made in a partition suit onthe basis of the purported Wills as alleged to have been executed byhim. Learned counsel appearing on behalf of the proposed defendants,Prema Chandrasekar and Thirumalvasi, while reiterated their claim on thebasis of the Wills alleged to have been executed by the deceased AppuJohn in their favour, submitted that even for securing a representationof the deceased Appu John in the suit, they should be allowed to contestthe suit.10. We have heard the learned counsel for the parties and noticedthe rival submissions with respect to O.S.A. Nos.302 and 303/07.We accept the submission that the partition suit cannot be convertedas testamentary suit for determination of claim as made by one or otheron the basis of any Wills, including Prema Chandrasekar andThirumalvasi. To that extent they may not be a necessary party in thepartition suit. However, as the deceased Appu John cannot be leftundefended, to secure representation of said deceased Appu John, ifproposed defendants have been impleaded, only for the purpose ofdefending the share of Appu John, we are of the view that nointerference is called for against such order passed by learned Judge.11. In the aforesaid background, while we are not inclined to grantrelief as sought for in O.S.A. Nos.302 and 303/07, make it clear thatthe defendants, Prema Chandrasekar and Thirumalvasi, who have beenimpleaded, may take part in the suit to secure the representation of thedeceased Appu John for determination of his share, but the court belowcannot determine their claim in the partition suit in question, whichotherwise is required to be determined in a testamentary suit.Accordingly, O.S.A. No.301/07 is dismissed as withdrawn with libertyto the appellant/plaintiff as given above and O.S.A. Nos.302 and 303/07are dismissed, but with aforesaid observation. However, in the factsand circumstances, there shall be no order as to costs. Sd/Asst. Registrar/true copy/Sub Asst.RegistrarGLN https://hcservices.ecourts.gov.in/hcservices/ ToThe Sub Asst. Registrar (O.S.)High CourtMadras.+1 cc to Mr.S.D.S.Phillip, Advocate, SR.No.21983.+3 cc to M/s.King & Partridge, Advocate, SR.No.22034.+3 cc to M/s.P.C.Harikumar & Associates, Advocate, SR.No.22059.+3 cc to Mr.W.S.Seetharam, Advocate, SR.No.21810.Pa (Co)krd / 24.4 O.S.A. NOS.301 TO 303 OF 2007