2013 Supreme(Mad) 1985

HIGH COURT OF JUDICATURE AT MADRAS
G. RAJASURIA, J.

S. Ramasamy
Versus
S. Subramanian
S.A.Nos.4 & 5 of 2009 & M.P.No.1 of 2009, M.P.No.1 of 2013
Decided on: 14-06-2013

Headnote:

The plaintiff filed a suit for injunction to restrain the defendant from alienating or encumbering the suit properties till final partition takes place between the plaintiff and the defendant by metes and bounds, in respect of the suit properties, by decree of permanent injunction. The plaintiff also filed a partition suit seeking the following reliefs: (a) To direct the division of the suit properties which morefully described in the plaint schedule hereunder, into 15 equal and just shares, by metes and bounds and allotting 6 of such separated shares to the plaintiff towards his joint 6/15 shares in the suit properties and further directing the defendants No.1 to 4 to deliver actual possession of the plaintiff's 6/15 separated shares to the plaintiff and thereby put the plaintiff in possession of such 6/15 separated shares and also making necessary provisions in the preliminary decree, for appointment of commissioner to effect partition and division of the suit property by metes and bounds and thereby permitting the plaintiff to apply for appointment of commissioner for effecting such division and partition of the suit property, by metes and bounds. (b) To restrain the defendant No.1 from in any manner cutting away and removing the existing trees in the suit properties, till the final decree is passed in the above suit, by a decree of permanent injunction; and (c) For costs. The trial court dismissed both the suits. The plaintiff challenged the judgments and decrees of both the courts below by filing second appeals. The substantial questions of law framed by the High Court were: (1) Whether both the Courts below were justified in holding that the generosity shown by Sengoda Gounder should not be treated as an act of blending of the suit properties with the ancestral properties and whether the Courts below were justified in ignoring the factum of describing the properties found in Ex.A1 as "Pidhirajyam" (Ancestral property) and also Exs.A19, 24, 45 and 46 in deciding the lis by holding as though there was no blending or treating the suit property as a joint family property? (2) Whether the courts below were justified in upholding Exs.A13 and 14 - the settlement deeds and Ex.B24 – the Will as valid, even though those documents according to the plaintiff were not allegedly proved in a manner known to law? (3) Whether the Courts below were justified in rendering judgment, without referring to Order 2 Rule 2 of CPC despite a plea taken in that regard in the written statement? (4) Whether there is any perversity or illegality in the judgments of both the fora below?

Fact of the Case:

The plaintiff and his father and his younger brother constituted a Hindu Joint Family which owned ancestral properties. While so, the father of the plaintiff, namely Sengoda Gounder, by way of settlement, got the suit properties, vide Ex.A1 dated 07.04.1956-the settlement deed executed by one Kumarasamy Gounder in favour of Sengoda Gounder. Ever since that time, the suit properties along with the ancestral properties were treated as joint family properties and all the three coparceners were enjoying them together. Inasmuch as the father and the younger brother of the plaintiff, in collusion with each other, were attempting to alienate the suit properties, the first injunction suit was filed. After the death of the father, during the pendency of the injunction suit, the other suit was filed seeking partition.

Finding of the Court:

The High Court held that the plaintiff and the defendant were entitled to half share each in the suit property. The court also held that the courts below were justified in upholding the execution of Exs.A13 and 14 - the settlement deeds and Ex.B24 – the Will, however, in view of the court's discussion supra Sengoda Gounder had no competence to execute the settlement deeds treating the suit property as self-acquired property in entirely, but his 1/3rd share could only be considered as the one relinquished by him in favour of the remaining two coparceners namely, his sons. The court further held that the courts below were justified in rendering judgment, without referring to Order 2 Rule 2 of CPC, in view of the court's finding supra that the cause of action for seeking partition is a continuing one.

Issues: (1) Whether both the Courts below were justified in holding that the generosity shown by Sengoda Gounder should not be treated as an act of blending of the suit properties with the ancestral properties and whether the Courts below were justified in ignoring the factum of describing the properties found in Ex.A1 as "Pidhirajyam" (Ancestral property) and also Exs.A19, 24, 45 and 46 in deciding the lis by holding as though there was no blending or treating the suit property as a joint family property? (2) Whether the courts below were justified in upholding Exs.A13 and 14 - the settlement deeds and Ex.B24 – the Will as valid, even though those documents according to the plaintiff were not allegedly proved in a manner known to law? (3) Whether the Courts below were justified in rendering judgment, without referring to Order 2 Rule 2 of CPC despite a plea taken in that regard in the written statement? (4) Whether there is any perversity or illegality in the judgments of both the fora below?

Ratio Decidendi: The High Court held that the plaintiff and the defendant were entitled to half share each in the suit property. The court also held that the courts below were justified in upholding the execution of Exs.A13 and 14 - the settlement deeds and Ex.B24 – the Will, however, in view of the court's discussion supra Sengoda Gounder had no competence to execute the settlement deeds treating the suit property as self-acquired property in entirely, but his 1/3rd share could only be considered as the one relinquished by him in favour of the remaining two coparceners namely, his sons. The court further held that the courts below were justified in rendering judgment, without referring to Order 2 Rule 2 of CPC, in view of the court's finding supra that the cause of action for seeking partition is a continuing one.

Final Decision: The High Court allowed both the appeals setting aside the common judgment and decrees of the trial Court as well as the appellate Court and the preliminary decree for partition allotting half share each in favour of the plaintiff and the defendant shall follow with usual clauses. However, in the facts and circumstances of this case, there is no order as to costs. Consequently, connected miscellaneous petition is closed.