2021 Supreme(Mad) 754

IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAJA, G. CHANDRASEKHARAN, JJ.
A. Suresh – Appellant
Versus
Minor. Pavishna, Represented by next friend and mother Revathi @ Loganayagi & Others – Respondent
A.S. No. 226 of 2013 & M.P. No. 1 of 2013
Decided On : 19-03-2021

Point of law: There is no dispute that even under Ex.A-4, the plaintiff who was a minor at the relevant time, was made eo nomine party. In such a circumstance, as rightly contended, he has to pray for cancellation of the earlier partition expressly or impliedly by paying necessary court-fees

Headnote:

Civil Procedure Code, 1908 – Section 96 – Hindu Succession Act – Partition Suit – Appeal is filed against the judgment and decree of the II Additional District Judge, Erode in O.S. – First respondent filed the suit in O.S. against the appellant and respondents 2 and 3 claiming partition of 2/6 share in the suit properties. – It is the case of the first respondent that the appellant is her father, respondents 2 and 3 are mother and sister of the appellant. Originally, the suit properties belonged to Arumuga Gounder. – Second respondent is wife of Arumuga Gounder. Appellant and third respondent are their children. – Arumuga Gounder died intestate about 30 years above leaving the appellant and respondents 2 and 3 as his legal heirs. – Appellant married first respondent's mother – Due to the ill advice of second and third respondents, appellant filed a divorce petition in HMOP against first respondent's mother on the file of Principal Subordinate Judge, Erode. – With the sole intention of denying the legal share of the first respondent in the suit properties, appellant and respondents 2 and 3 executed a partition deed – In the said partition, respondents 2 and 3 have been allotted lion's share and the appellant was allotted only a meagre share. – The first respondent is entitled to 2/6 share in the suit properties. – Execution of partition deed clearly shows that the appellant, respondents 2 and 3 wanted to defeat the legal right of the first respondent in claiming 2/6 share in the suit properties. – Therefore, this case came to be filed. – Whether the finding of the trial Court that the first respondent is entitled to 2/6 share in the suit properties is correct – Whether the suit filed without a prayer for setting aside the partition deed is maintainable – Whether the appeal can be allowed

Finding of court: Court finds that the judgments relied on by the first respondent apply to the facts and circumstances of this case and the judgments relied on by the appellant are not applicable to the facts and circumstances of this case. – Court is of the considered view that when the first respondent is not a party to Ex.B1- partition deed, the partition deed insofar as the first respondent is concerned is void-ab-initio and it is not necessary for her to seek the prayer to set aside the partition deed or to seek cancellation of the partition deed. – In this view of the matter, this Court finds that the argument advanced on behalf of the appellant and respondents 2 and 3 that the suit filed without a prayer for declaration that Ex.B1-partition deed is null and void and not binding on the first respondent (or) without a prayer for its cancellation, is not maintainable, cannot be accepted and the argument in this regard is rejected. – It is patently clear that the appellant was allotted only a very meagre share when compared to respondents 2 and 3. – Therefore, there is merit in the contention of the first respondent that only to deny her legitimate share, appellant and respondents 2 and 3 had allotted only a meagre share to the appellant. – Therefore, the filing of the suit by the first respondent to protect her right to the legitimate share in the suit properties cannot be faulted. – In this regard, learned counsel for the appellant relied on the ruling reported in (2016) 15 SCC 463 (cited supra) for the position that the parties to the partition deed can agree for unequal division of undivided property. – Here again the facts of the case shows that the minor's interest is not involved and the parties challenging the partition deed were parties to the partition deed. – That is not the case here. – Here in this case, first respondent is not even an eo-nomine a party in the partition deed. – Therefore, this judgment is not applicable to the facts and circumstances of this case. – Court concurs with the finding of the trial Court that the first respondent is entitled to share in the suit properties. – When it comes to allotment of shares in the presence of the second respondent, who is class-I heir of Arumuga Gounder, the division has to take place on the basis of notional partition. – In that event, Arumuga Gounder, appellant and third respondent would have got 1/3 share each. – From Arumuga Gounder's 1/3 share, appellant and respondents 2 and 3 would each get 1/9 share. – Thus, appellant and third respondent would get 4/9 share each and the second respondent would get 1/9 share. – From the appellant's share of 4/9 share, the first respondent/plaintiff would get 2/9 share. – Court confirms the judgment and decree of trial Court with the aforesaid modification that the first respondent/ plaintiff is entitled to 2/9 share in the suit properties and a preliminary decree for partition is passed accordingly.

Result: Appeal Partly Allowed