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Madras High Court
KAILASAM,N.S.RAMASWAMI
Nabisha Begum - Appellant
Versus
Arumuga Thewar - Respondent
Decided On : 02/05/1973
PARTITION - DIVISION IN STATUS - ORDER UNDER O. XXXII, R. 12, C.P.C. - EFFECT - PRELIMINARY DECREE - EFFECT OF DISMISSAL OF SUIT - REVOCATION OF INTENTION TO SEPARATE - UNILATERAL WITHDRAWAL OF DECLARATION.
Fact of the Case:
Plaintiff purchased land from Velayutham Pillai, who was a member of a joint Hindu family. The family owned several properties, and in 1941, a suit for partition was filed on behalf of Nelliappa Pillai, a minor coparcener, by his uncle as next friend. A preliminary decree was passed, declaring that Nelliappa Pillai and his two brothers, Velayutham Pillai and Ambalavana Pillai, were each entitled to a 1/3 share in the properties. After the preliminary decree but before a final decree was passed, Nelliappa Pillai attained majority and filed an application under Order XXXII, Rule 12, C.P.C., electing to abandon the suit. The suit was dismissed. Nelliappa Pillai died in 1945, leaving no widow or issue. In 1957, Kanthimathi Ammal, the mother of the parties, filed an application to have the suit restored to file and a final decree passed, claiming that she was entitled to 2/3 share in the property as the shares of Nelliappa Pillai and Ambalavana Pillai had devolved on her. The application was dismissed. Velayutham Pillai executed a sale deed in favor of the plaintiff in 1957. The plaintiff filed a suit for declaration and possession of the suit properties, contending that there had been no division in the joint family status and that Velayutham Pillai got all the joint family properties by survivorship.
Finding of the Court:
The court held that there had been a division in status among the three brothers, Velayutham Pillai, Ambalavana Pillai, and Nelliappa Pillai, and that the shares of Nelliappa Pillai and Ambalavana Pillai had devolved on Kanthimathi Ammal, their mother, as she was the nearest heir. The court further held that the order in I. A. 110 of 1944 filed by Nelliappa Pillai under Order XXXII, Rule 12, C.P.C., dismissing the suit, did not nullify the division in status already brought about and did not restore the parties to their status of joint family members.
Issues: 1. Whether the order under Order XXXII, Rule 12, C.P.C., dismissing the suit for partition nullified the division in status already brought about and restored the parties to their status of joint family members. 2. Whether a coparcener who made the necessary declaration and brought about a severance in status can unilaterally withdraw the declaration and restore the parties to their original position.
Ratio Decidendi: 1. The court held that the order under Order XXXII, Rule 12, C.P.C., dismissing the suit for partition did not nullify the division in status already brought about and did not restore the parties to their status of joint family members. The court reasoned that division in status takes place immediately on a coparcener declaring his unequivocal intention to separate and communicates the declaration to the other members, and that the filing of a suit for partition amounts to such a declaration. The court further held that a preliminary decree for partition conclusively determines the rights of the parties with regard to the matters in controversy in the suit, and that the dismissal of the suit under Order XXXII, Rule 12, C.P.C., would only mean that all reliefs which had not been granted so far are negatived, but it would not nullify the preliminary decree. 2. The court held that a coparcener who made the necessary declaration and brought about a severance in status cannot unilaterally withdraw the declaration and restore the parties to their original position. The court reasoned that when once a communication of the intention to separate is made, which has resulted in the severance of the joint family status, it is not thereafter open to the coparcener to nullify its effect so as to restore the family to its original joint status.
Final Decision: The appeal was dismissed with costs.
N.S. RAMASWAMI, J. :- The plaintiff, who lost before the trial court, the first appellate court as well as before Ramakrishnan J., in second appeal, is the appellant before us in this Letters Patent appeal. The suit is one for declaration and possession with future mesne profits in respect of certain lands which the plaintiff purchased from one Velayutham Pillai under the sale deed Ex. A-1, dated 25-7-1957. All the courts have held that the plaintiffs remedy, if any, is only a suit for general partition with an equity for having the suit properties allotted to the share of vendor Velayutham Pillai inasmuch as, on the date of sale, he was not the owner of the suit properties but only had a 1/3 share in the family properties including the suit properties and that the suit for possession of the specific properties should fail. The matter turns upon the effect of an order under O. XXXII. R. 12, C.P. Code, in a suit for partition in which a preliminary decree has already been passed, regarding the status of the members of the joint family. Whether the division in joint family status already brought about is nullified and the members restored to their status of joint family members by the order under Order XXXII, Rule 12, C.P.C. dismissing the suit (even though a preliminary decree for partition had already been passed), is the question.
2. The facts are these : Velayutham Pillai, the vendor under Ex. A-1, in favour of the plaintiff, one Ambalavana Pillai and one Nelliappa Pillai are the sons of one Muthiah Pillai. The father Muthiah Pillai died in the year 1933. The three brothers admittedly were members of a joint Hindu family and the family owned several items of immovable properties. In 1941, when Nelliappa Pillai, one of the three brothers, was a minor, O. S. No. 35 of 1941, was filed on the file of the Court of the Subordinate Judge, Tirunelveli, on behalf of the said minor Nelliappa Pillai by his uncle acting as his next friend. To this suit, the other two brothers, viz., Velayutham Pillai and Ambalavana Pillai, as well as Kanthimathi Ammal, the mother of the parties, had been impleaded as defendants. A preliminary decree for partition declaring that the minor plaintiff, viz., Nelliappa Pillai, and the other two brothers, Velayutham Pillai and Ambalavana Pillai, are each entitled to a 1/3 share in the various items of suit properties was passed. The preliminary decree also made certain provisions towards the maintenance of Kanthimathi Ammal, the mother of the parties. After the passing of the abovesaid preliminary decree but before any one applied for passing a final decree. Nellavappa Pillai, the minor plaintiff in the suit, attained majority. Then he filed I. A. 110 of 1944 in O. S 35 of 1941, under Order XXXII Rule 12, C.P.C., electing to abandon the suit. Upon that, the court appears to have passed an order dismissing the suit. The said Nelliappa Pillai died in April 1945, leaving no widow or issue.
3. Very many years after, i.e., in the year 1957, Kanthimathi Ammal, the mother of the parties, filed I. A. No. 278 of 1957 in the abovesaid suit for having the suit restored to file. By that time, Ambalavana Pillai, one of the three brothers, was not heard of for several years. It is stated that his whereabouts are not known since 1948. In I. A. No. 278 of 1957, Kanthimathi Ammal pleaded that on the death of Nelliappa Pillai in 1945, and on the civil death of Ambalayana Pillai, who was not heard of for a long number of years, their two shares had devolved on her and that the suit should be restored to file and a final decree passed giving her 2/3 share in the property, while the remaining 1/3 share should go to the only remaining son, Velayutham Pillai. This application, which was resisted by Velayutham Pillai, ultimately came to be dismissed mainly on the ground that the order in I. A. No. 110 of 1944, the application under Order XXXII, Rule 12, C.P.C., dismissing the suit had been passed in the presence of Kanthimath
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