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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G.R.SWAMINATHAN, J.
Rajam - Appellant
Vs.
Palayan(Died) - Respondent
S.A.(MD)No.735 of 2008 and M.P.(MD)No.1 of 2012
Decided On : 16-07-2021
Civil Procedure Code,1908 - Section 100 - Order 23 Rule 3 - Suit For - Partition - According to her suit properties originally belonged to her grandfather had five sons plaintiff and fifth defendant were born to through sixth defendant - Following demise of got married to brother Through that wedlock two sons D3- and D4 were born to her - Case of plaintiff is that she and fifth defendant alone are entitled to inherit estate of their father since their mother got married - Defendants 3, 4 and 6 filed a joint written statement controverting plaint averments - First defendant also filed an independent written statement. - Second defendant remained ex-parte - During pendency of trial passed away - Plaintiff examined herself as P.W.1 and marked Ex.A.1 and Ex.A.2. second defendant examined himself as D.W.1. third defendant examined himself as D.W.2. Ex.B.1 to Ex.B.21 were marked - At stage counsel for plaintiff filed following statement - Whether plaintiff's present appeal should be thrown out merely because her advocate filed a statement of shares agreeing to receive only 1/15th share – Held, Admittedly statement of shares filed by counsel did not contain signature of plaintiff - Statement called upon court to allot 1/15th share even though plaintiff was entitled to 1/10th share - Court ought to bear in mind mandate set out in Order 23 Rule 3 of CPC. - Judgment and decree passed by Courts below are modified - Plaintiff is entitled to 1/10th share in suit properties - Shares of other persons accordingly will get adjusted – Court make it clear that outcome of appeal will not amount to casting any aspersion on counsel concerned - Trial court as well as first appellate court erred - For mistake committed by Courts plaintiff cannot be deprived of legitimate share to which plaintiff is otherwise entitled - An appeal against a consent decree is not maintainable - Second Appeal allowed.
JUDGMENT :
Prayer: Second appeal filed under Section 100 of C.P.C., against the Judgment and Decree dated 26.11.2007 passed in A.S.No.1 of 2004 by the Subordinate Judge, Kuzhithurai, confirming the Judgment and Decree passed in O.S.No.355 of 1993 dated 29.08.2003 by the Principal District Munsif, Kuzhithurai.
The appellant herein filed O.S No.355 of 1993 on the file of the Principal District Munsif, Kuzhithurai seeking partition of 1/10th share in the suit properties.
2. According to her, the suit properties originally belonged to her grandfather Sankili. Sankili had five sons, namely, Sankaran, Chithirai, Kochupillai, Chellappan and Palayyan. The plaintiff and the fifth defendant were born to Chithirai through the sixth defendant Mariyamma. Following the demise of Chithirai, Mariyamma got married to Chithirai's brother Kochupillai. Through that wedlock, two sons D3- Vijayan and D4-Dhas were born to her. The case of the plaintiff is that she and the fifth defendant alone are entitled to inherit the estate of their father Chithirai since their mother got married to Kochupillai.
3. Defendants 3, 4 and 6 filed a joint written statement controverting the plaint averments. The first defendant Chellappan also filed an independent written statement. The second defendant Palayyan remained ex-parte. During the pendency of the trial, Mariyamma passed away. The plaintiff examined herself as P.W.1 and marked Ex.A.1 and Ex.A.2. The second defendant examined himself as D.W.1. The third defendant examined himself as D.W.2. Ex.B.1 to Ex.B.21 were marked. At this stage, the counsel for the plaintiff filed the following statement :
“The property sought to be partitioned are plots allotted to one Sankili who died leaving behind five sons. They are as follows:-
| Sankili | |||||||
| Sankaran | Chithirai | Kochupillai (died 1/5) | Chellappan (D1)(1/5) | Palayyan (D2)(1/5) | |||
| sold to three brothers viz. Kochupillai, Chellappan and Palayyan Ex.B.4 & Ex.B.5 | Plff. 1/15 | D5 1/15 | D6 1/15 | Vijayan (D3) | Dhas (D4) |
|
|
One of the sons of Sankili viz. Sankaran sold his 1/5th share to his three brothers Kochu Pillai, Chellappan and Palayyan. So Kochu Pillai, Chellappan and Palayyan got 1/3rd of 4/5 share each. Chithirai got 1/5 share only. Chithirai died leaving behind two daughters and a widow. The daughters are plaintiff and 5th defendant. The widow is 6th defendant. So each heir will get 1/15 share. The widow of Chithirai viz.6th defendant is subsequently married by Kochu Pillai and defendants 3 and 4 are born to 6th defendant. Now 6th defendant died and 3 and 4 are recorded as the heir of 6th defendant as per I.A.No.389/2003. So defendants 3 and 4 are entitled to get 1/15 share of 6th defendant in addition to their other shares.
The second defendant sold 5 cents to defendants 3 and 4 in item 1 under Ex.B.10 sale deed.
The plaintiff is not a party to Ex.B.12 partition arrangement and hence she is not bound by it.
Now the following are the shares of parties:-
| Parties | Share |
| Plaintiff | 1/15th share in item 1 to 3 |
| 1st defendant | 1/3rd of 4/5th share in all the items |
| 2nd defendant | 1/3rd of 4/5 share minus 5 in item No.1 and 1/3rd of 4/5 share in items 2 and 3. |
| Defendants 3 and 4 | 1/3rd of 4/5 share plus 1/15 plus 5 cents in item No.1 and 1/3 of 4/5 share plus 1/15 share in items 3 and 4. |
| 5th defendant | 1/15 share in item 1 to 3. |
Partition has to be effected in accordance with the present possession and enjoyment of the parties inclusive of their buildings. 27.08.2003. Advocate..”
In view of the aforesaid statement filed by the counsel for the plaintiff, the trial Court passed the following decree :
“item No.1 to 3, 1/15th share is allotted to the plaintiff. In all the items, 1/3 rd of 4/5 share is allotted to the 1st defendant. In item No.1, 1/3 rd of 4/5 share + 1/15 share + 5 cents and in items 3 and 4, 1/3 o
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