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2013 Supreme(Mad) 1567
High Court of Judicature at Madras
G. RAJASURIA, J.
Paramasiva Gounder & Another
Versus
S.P. Muthusamy
S.A.No. 1279 of 2010 & M.P.No. 1 of 2010
Decided On : 09-04-2013
Advocate Appeared:
For the Appellants:P. Valliappan, Advocate.
For the Respondent:N. Manokaran, Advocate.
The court emphasized the importance of including all suit items in a partition suit and ruled that in the absence of a registered deed of relinquishment, the plea of relinquishment cannot be upheld. The court also highlighted the need to protect the rights of widows and the importance of family arrangements in resolving disputes.
Headnote:
Partition - Suit Properties - Ex.A7=Ex.B5 - The court decided that the suit was not bad for want of inclusion of other items of properties found specified in Ex.A7=Ex.B5, the partition deed. The court also ruled that in the absence of any registered deed of relinquishment at the instance of Deivanai in favor of the other co-sharers, the plea of the defendants concerning such relinquishment cannot be upheld. The court found no perversity or illegality in the judgments and decrees of the courts below.
Fact of the Case:
The plaintiff filed a suit seeking division of the suit properties into 3 equal shares and other reliefs. The trial court partly decreed the suit allotting 3/16th share in favor of the plaintiff. The plaintiff and defendants both appealed, and the court confirmed the judgment and decree of the trial court.
Finding of the Court:
The court found that the suit was not bad for want of inclusion of other items of properties found specified in the partition deed. The court also ruled that in the absence of any registered deed of relinquishment at the instance of Deivanai in favor of the other co-sharers, the plea of the defendants concerning such relinquishment cannot be upheld. The court found no perversity or illegality in the judgments and decrees of the courts below.
Issues: The issues included whether the suit was bad for want of inclusion of certain other items of suit properties, the validity of the sale executed by Deivanai after relinquishing her share, and the entitlement of the respondent to any relief.
Ratio Decidendi: The court held that the suit was not bad for want of inclusion of other items of properties found specified in the partition deed. The court also ruled that in the absence of any registered deed of relinquishment at the instance of Deivanai in favor of the other co-sharers, the plea of the defendants concerning such relinquishment cannot be upheld. The court found no perversity or illegality in the judgments and decrees of the courts below.
Final Decision: The court confirmed the judgment and decree of the trial court with the clarification that during final decree proceedings, if the defendants come forward for the inclusion of the left out items of the joint properties, it is open for the court to include those properties and notionally divide the suit properties as well as the other properties and allot notionally 3/16th shares in favor of Deivanai and ultimately on equity basis allot such shares to the plaintiff. The court disposed of the second appeal with no costs.
1. This second appeal is focussed by the defendants, animadverting upon the judgment and decree dated 15.03.2010 passed by the learned Principal District Judge, Erode in Cross Appeal in A.S.No.112 of 2009 in confirming the judgment and decree dated 22.06.2009 passed by the learned Principal Subordinate Judge, Erode in O.S.No.173 of 2007.
2. The parties are referred to here under according to their litigative status and ranking before the trial Court.
3. A re'sume' of facts, absolutely necessary and germane for the disposal of this Second Appeal would run thus:
(i) One Muthusamy claiming to be the purchaser of the 1/3 rd share of Deivanai, who was a co sharer along with D1 and D2, filed the suit seeking the following reliefs:
To pass a decree in favour of the plaintiff and as against the defendants'
(a) directing division of the suit properties into 3 equal shares by metes and bounds and with reference to good and bad soil and allot one such share to the plaintiff and put him in separate possession.
(b) appointing a Commissioner to divide the suit properties as claimed in column (a)
(c) restraining the defendants, their assignees etc., from in any way and in any manner
either alienating or encumbering the suit properties to any other 3rd parties including the share of the plaintiff with specific boundaries, till the final partition is effected by means of permanent injunction;
(d) directing the defendant to pay the costs of the suit to the plaintiff.
(extracted as such)
citing the following property described in the schedule of the plaint:
Erode R.D., Chengam via Sub-R.D., Perundurai Taluk Mukasi Pidariyur Village, Old S.F.No.19, Punja acre 9.55 kist Rs.10.70 New R.S.No.378 Punja Hec.3.81.0 (punja acre 9.41) the said lands, mamool pathway and cart track rights and all other easementary rights attached thereto.
(extracted as such)
(ii) The gist and kernel of the plaint averments would run thus:
The suit property originally belonged to one Andamuthu Gounder. He had his wife by name Papayee Ammal and the couple gave birth to three sons, viz., D1 Paramasiva Gounder, D2- Karuppanna Gounder and the deceased Marappa Gounder. Marappa Gounder pre-deceased his parents leaving behind his widow Deivanai and his mother Papayyee as his legal heirs. Subsequently, it so happened that Deivanai sold her 1/3 rd share in the suit properties in favour of Muthusamy vide sale deed dated 28.03.2007. Since the defendants were not agreeable for amicable partition, he filed the suit seeking the aforesaid reliefs.
(iii) Per contra, challenging and impugning the averments/allegations in the plaint, the defendants' jointly filed the written statement, the warp and the woof of the same would run thus:
The said Marappa Gounder died intestate on 23.02.1969 leaving behind his widow Deivanai and his mother Papayee and his 1/4th share devolved upon them equally. Subsequently, Andamuthu Gounder died intestate. His ¼ th share devolved upon the two defendants herein and the Marappa Gounder's widow Deivanai as well as the widow of Andamuthu Gounder. As such, the plaintiff's vendor Deivanai was entitled to 3/16 th share in the family properties. However, Deivanai by the end of 1970 after receiving a sum of Rs.7,000/- towards her share, relinquished her right over it. Thereafter, the registered partition deed dated 01.03.1971 emerged among other co-sharers. Wherefore, Deivanai had no right over the suit properties and her alienation of her alleged share in favour of the plaintiff was bad in law.
Accordingly, he would pray for the dismissal of the suit.
(iv) The trial court framed the relevant issues.
(v) Up went the trial, during which the the plaintiff examined himself as P.W.1 along with P.W2 and marked Exs.A1 to A8; and on the defendants' side D.Ws.1 to 3 were examined and Exs.B1 to B5 were marked.
4. Ultimately the trial Court partly decreed the suit allotting 3/16 th share in favour of the plaintiff, so to say, in recognition of the 3/16th s
