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2015 Supreme(Mad) 2363
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. MALA, J.
Uthammappan - Appellant
Vs
S.Rajannan and Ors. – Respondents
S.A.No.1356 of 2008
Decided On : 09.07.2015
For Appellant : Mr.T.Murugamanickam
For Respondents:Mr.V.R.Rajasekaran, Mr. S. Parthasarathy senior counsel for Mr. A.P. Srinivas.
Headnote:
Partition - Hindu Succession Act - Section 6, Section 8 - The judgment discusses the applicability of Section 6 and Section 8 of the Hindu Succession Act in a partition dispute. The court held that once the partition took place, there were no coparceners, and Section 8 alone applied to the case. The court also addressed the grant of lesser relief in a partition suit and the necessity to include all items in the partition decree.
Fact of the Case:
The suit involved a dispute over the partition of joint family properties. The plaintiffs sought declaration of title, injunction, and recovery of possession, claiming a family arrangement in 1975. The trial court dismissed the suit, but the first appellate court granted a preliminary decree of partition, awarding 3/8th shares to the plaintiffs. The second appeal was filed challenging the preliminary decree.
Finding of the Court:
The court found that the family arrangement in 1975 was not proved by the plaintiffs. It held that once the partition took place, there were no coparceners, and Section 8 of the Hindu Succession Act alone applied. The court set aside the preliminary decree of partition granted by the first appellate court and restored the judgment of the trial court.
Issues: The issues revolved around the applicability of Section 6 and Section 8 of the Hindu Succession Act, the grant of lesser relief in a partition suit, and the necessity to include all items in the partition decree.
Ratio Decidendi: The court held that once the partition took place, there were no coparceners, and Section 8 alone applied. It also emphasized the need to include all items in the partition decree and the grant of lesser relief consistent with the pleadings.
Final Decision: The second appeal was allowed, the decree and judgment passed by the first appellate court were set aside, and the decree and judgment passed by the trial court were restored. The parties were directed to bear their own costs.
The second appeal arises out of the judgment and decree dated 10.02.2006 made in A.S.No.158 of 2005 on the file of the Additional Sub-Court, Salem, modifying the judgment and decree dated 06.07.2005 made in O.S.No.879 of 2004 on the file of the Principal District Munsif Court, Salem.
2.The averments made in the plaint are as follows:-
(i)The plaintiffs 1 and 2, the first defendant and one Balasubramanian are the sons of Siddappa Chettiar. Balasubramanian, eldest son of Siddappa Chettiar died about six years back leaving behind the third plaintiff, wife of Balasubramanian as his only legal heir.
(ii)Siddappa Chettiar and his sons partitioned the joint family properties under the registered partition deed dated 20.06.1960. The first defendant was a minor aged about 14 at the time of partition. 'A' schedule property was allotted to the share of Siddappa Chettiar and the first defendant. After the death of Siddappa Chettiar, the plaintiffs 1 and 2, Balasubramanian (since dead), Lakshmi Ammal/mother of the plaintiffs 1 and 2 and the first defendant had succeeded to the half share of the deceased Siddappa Chettiar.
(iii)Since there was misunderstanding among the sharers in the enjoyment of 'A' schedule properties described in the partition deed, there was a family arrangement in the year 1975 and with the help of elders related to both the parties, the property in schedule 'A' was divided and the first defendant and mother Lakshmi Ammal were allotted the properties in Item No.1, Item No.2 described in the half share of the first defendant in A schedule properties and also for an 1/4th share of Siddappa Chettiar that has been inherited by the first defendant and Lakshmi Ammal.
(iv)The plaintiffs 1 and 2, Balasubramanian were allotted the remaining 3/8th shares of Siddappa Chettiar in the 'A' schedule of the partition deed and the same were described as Item No.3. The property in the third item is the subject matter of the suit. It is only a house site, wherein the plaintiffs put up a thatched shed for running a small mutton stall by the second defendant by paying monthly rent of Rs.100/-. The defendants in order to defraud the legitimate share of the plaintiffs in the suit property, were negotiating the sale of the suit property in favour of the second defendant. The plaintiffs are the absolute owners of the suit property and the second defendant is only a tenant. Therefore, the plaintiffs filed a suit for the following reliefs:
a) declaring the plaintiffs' absolute title to the suit property;
b)restraining the defendants and their men by means of permanent injunction from in any manner interfering with the plaintiffs' absolute possession and enjoyment of the suit property, bearing the thatched shed measuring 10' X 15' facing north-south main road;
c) directing the second defendant to pay the arrears of rent amounting to Rs.200/-;
d)directing the second defendant to pay the future rent from 01.06.1995 till delivery of possession of the thatched shed at the rate of Rs.100/- per month;
e)directing the second defendant to deliver vacant possession of the thatched shed in the suit property facing north-south main road; Thus, the plaintiffs prayed for decree.
3.The gist and essence of the written statement filed by the first defendant are as follows:
(i)Subsequent to the partition deed dated 20.06.1960, the deceased Siddappa Chettiar and the first defendant alone had been living jointly in 'A' schedule property in the said partition deed till the death of his father. As there has already been a division and each of the other three sons had been given their due shares, none of the plaintiffs 1 and 2 or said Balasubramanian can be said to be sharers in the eye of law. There was no family arrangement either in the year 1975 or at any point of time. Therefore, he prayed for dismissal of the suit.
4.The Learned Trial Judge after considering the averments both in the plaint and written statement and arguments on either side counsel, ha
