Back
2021 Supreme(Mad) 3511
IN THE HIGH COURT OF MADRAS AT MADURAI BENCH
R. Tharani, J.
P. Baskar - Appellants
Vs.
P. Manivannan and Ors. - Respondent
C.M.A. (MD) No. 1350 of 2013 and M.P. (MD) No. 1 of 2013
Decided On : 25-11-2021
Advocate Appeared:
For the Appellant : AL. Gandhimathi
For the Respondents: S. Deenadhayalan and V. Sasikumar
Headnote:
Property – Partition - Possession - Suit is filed for partition and for separate possession - Suit properties originally belongs to father of plaintiff/ petitioner – One had two wives - Petitioner and defendants and (wife of the 14th defendant) are sons and daughters born through second wife of said one – Said one died leaving behind her husband and sons/defendants - Defendants are sons and daughters of said one through first wife – Said one died intestate - Both his wives died suit properties are in joint possession and enjoyment of all parties and remain undivided - Legal heirs of said one decided to divide properties in an amicable manner - A family arrangement of partition was entered - All the parties have signed agreement in presence of witnesses and panchayathars - As per agreement, they agreed to execute a registered partition deed and to divide properties by metes and bounds - Whether release deed executed by Rajammal is binding, plaintiff and defendants 7 to 13 legal representatives of Mallika can be decided only after completion of trial.
Finding of the Court: Suit is filed for partition, everybody, who are claiming a right has a duty to prove their eligibility for a share - From admission made out by counter filed by first respondent and from encumbrance certificate, it is clear that first respondent is alienating certain properties that belonged to said one - Third respondent is daughter of said one through Pappathiammal and third respondent is claiming 1/5th share in property - Since third respondent is also claiming right over property and questioning sale executed by first and second respondent, an order preventing first and second respondents from alienating properties till disposal of case is necessary - It is decided that order of trial Court is to be set aside. Hence, an order of injunction not to alienate or encumber the suit properties against the defendants 1 to 6, till the disposal of suit is granted - Trial Court is directed to disposed of original suit within a period of six months from date of receipt of a copy of this order - In the result, this Civil Miscellaneous Appeal is allowed and order, on the file of 1st Additional Sessions Judge (Protection of Civil Rights), is hereby set aside - Consequently, connected Miscellaneous Petition is closed.
Result: Appeal allowed.
JUDGMENT :
R. Tharani, J.
1. This Civil Miscellaneous Appeal is filed against the order, dated 11.03.2013, in I.A. No. 48 of 2012, in O.S. No. 24 of 2011, on the file of the 1st Additional Sessions Judge (Protection of Civil Rights), Thanjavur.
2. The appellant herein is the plaintiff in the suit and the petitioner in the I.A. petition and the respondents herein are the defendants in the suit and the respondents in the I.A. petition. The appellant herein filed a suit in O.S. No. 24 of 2011 for partition and for allotment of 1/15th share in the suit properties and for other reliefs. During the pendency of the suit, the plaintiff filed a petition in I.A. No. 48 of 2012, under Order 39 Rule 1 and 2 of C.P.C., to pass an order of temporary injunction, restraining the defendants from encumbering the suit properties, till the disposal of the suit. That petition was dismissed by the trial Court. Against the same, the plaintiff/appellant has preferred this Civil Miscellaneous Appeal.
3. Brief substance of the petition, in I.A. No. 48 of 2012, is as follows:-
3.1. The suit is filed for partition and for separate possession. The suit properties originally belongs to the father of the plaintiff/petitioner viz., Sri Pandariya Pillai. Sri Pandariya Pillai had two wives. The petitioner and the defendants 7 to 13 and Smt. Mallika (wife of the 14th defendant) are the sons and daughters born through the second wife of Sri Pandaria Pillai, viz., Rajammal. Mallika died leaving behind her husband and sons/defendants 14 to 16. The defendants 1 to 3, 5 and 6 are the sons and daughters of Sri Pandariya Pillai, through the first wife/Pappathy ammal.
3.2. Sri Pandariya Pillai died intestate on 02.11.1986. Both his wives died subsequently, the suit properties are in joint possession and enjoyment of all the parties and remain undivided. In the month of May-2002, the legal heirs of Sri Pandariya Pillai decided to divide the properties in an amicable manner. A family arrangement of partition was entered on 06.05.2002. All the parties have signed the agreement in the presence of witnesses and panchayathars. As per the agreement, they agreed to execute a registered partition deed and to divide the properties by metes and bounds.
3.3. Sri Pandariya Pillai, was doing business on manufacturing oil soap under the name and style of "Power Light Soap". After his demise, the defendants 1 to 3, 5, 7, 9 and 13 were carrying on the business under the name and style of M/s. Pandariya Pillai and sons power light soap. Due to some misunderstanding and non-cooperation among the family members, they stopped the manufacturing and the factory remain closed. The defendants 1 to 6 are attempting to alienate and encumber the properties without disclosing the petitioner's title and interest in the properties. They indulged in acts of manipulating records and documents and also attempting to procure patta and other revenue records in their names with an ulterior motive to defraud the lawful claim of the plaintiff'. During the first week of May-2011, the defendants 1 to 6 took some strangers to the suit properties and indulged in negotiation of sale of properties. The sale was prevented by the petitioner. There is a chance for the defendants to alienate or encumber the properties adverse to the interest of the plaintiff and the defendants 7 to 16 and an order of permanent injunction restraining the defendants from alienating and encumbering the properties till the disposal of the suit is necessary.
4. Brief substance of the counter filed by the first respondent, in I.A. No. 48 of 2012 is as follows:-
4.1. It is false to say that Pandariya Pillai, married two wives. Rajammmal, was not the wife of Pandariya Pillai, she was a concubine of Pandariya Pillai for some period and the same has been declared by Pandariya Pillai himself and the children including the petitioner born through the concubine cannot be the legal heirs of Pandariya Pillai. Only the defendants 1 to 6 are the legal heirs
