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2022 Supreme(Mad) 888
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
N.SESHASAYEE, J.
P.Arunachalam – Appellant
Versus
M.Kaliammal – Respondent
S.A(MD).No.1082 of 2011
Decided on : 01-07-2022
Advocate Appeared:
For the Appellants : Mr.Anand Chandrasekar
For the Respondents: Mr.Babu Rajendran
The court re-evaluated the principle of partial partition, emphasizing the need to conserve judicial time and prevent abuse of the judicial process.
Headnote:
Partial Partition - Hindu Succession Act - Ext.A.1 - Ext.A.4 - Ext.A.8
Fact of the Case:
The plaintiffs filed a suit for partition of properties, which was contested by the defendants. The trial court rejected the defendants' plea of oral family arrangement/partition but accepted the defense of partial partition. The first appellate court dismissed the appeal, leading to this second appeal.
Finding of the Court:
The court found that the suit was not bad for seeking partial partition and decreed the plaintiffs' share in each property, subject to foreclosing their right to seek partition of any omitted properties in the suit.
Issues: The issues included the burden of proof regarding the existence of omitted properties, misreading of documentary evidence, and denial of partition to the plaintiffs.
Ratio Decidendi: The court re-evaluated the principle of partial partition, emphasizing the need to conserve judicial time and prevent abuse of the judicial process. It modified the existing rule on partial partition, allowing the court to pass a decree for partition of available properties and foreclose the right to seek partition of omitted properties.
Final Decision: The second appeal was allowed, and the plaintiffs' shares in each property were declared. The trial court was required to initiate final decree proceedings, and the plaintiffs were foreclosed from seeking partition of any omitted properties.
JUDGMENT :
Prayer : Second Appeal filed under Section 100 of Code of Civil Procedure, against the judgment and decree of the Subordinate Judge, Palani dated 22.11.2010 in A.S.No.27 of 2006 confirming the judgment and decree passed by the District Munsif, Palani dated 31.01.2006 in O.S.No. 877 of 1990.
The plaintiffs, who laid a suit for partition in O.S.No.877 of 1990, for partitioning four items of properties, having lost it successively both before the trial Court and before the first appellate Court in A.S.No.27 of 2006, are the appellants herein. For narrative convenience, the parties would be referred to as per their rank before the trial Court.
Pleadings:
2.1 There is hardly any difference between the parties on the material facts on which the plaintiffs have found the cause for their action. They are as below:
Certain Karupanna Gounder and Nallappa Gounder were brothers. Their ancestors owned items 1 to 3 properties described in the plaint. These are agricultural lands. This apart there are other properties that these brothers owned, regarding which there was an oral partition between them. In this partition, suit item 4 property comprises of a house plus vacant site in which Karuppanna Gounder had . share.
Karuppana Gounder was married to one Karupayee and they had five children, of whom three were their sons. The two daughters are the plaintiffs here.
Both Karuppana Gounder and Karuppayee had died prior to the commencement of the Hindu Succession Act. This is an admitted fact. Consequent to their demise, the 4th item of property and Karuppana Gounder's share in items 1 to 3 devolved on his three sons, namely, Muthusamy, Kumar and Palanisamy alias Palaniappan.
On 12.09.1961 under Ext.A.1, Kumar sold his share in these 4 items of properties to his brother Palanisamy.
Of the three brothers, Muthusamy pre-deceased Palanisamy.
Palanisamy also died without any direct lineal descendants as his issues, or in other words without any Class I heirs. And, since Muthusamy had died by then, the share of Palanisamy devolved equally on his two sisters, the plaintiffs herein as the latter's Class II heirs.
Muthusamy's wife is the first defendant and their daughter is the second defendant. The defendants 3 to 5 are descendants of Nallappa Gounder, the other undivided branch pertaining to items 1 to 3.
2.2 The suit is laid for partition of plaintiffs' share after exchange of notices, and the specific shares of each of the plaintiffs in each of the items of the properties are detailed in paragraph 14 below.
3.1 The suit was contested only by the defendants 1 and 2. Nallappa Gounder's branch represented by the defendants 3 to 5 chose to remain exparte. In their written statement, defendants 1 and 2 took up two contentions: (a) that after the demise of Muthusamy Gounder, there was an oral family partition between the defendants on the one hand, and Palaniappa Gounder on the other hand, in which all the shares of Palaniappa Gounder in the suit properties came to be allotted to these defendants; (b) that there lies a plot measuring 1,417 sq.ft, a vacant site, adjacent to item No.4. This property was not included in the suit. This apart, there is yet another property comprised in S.No.600/2A. This was also not included and hence, the suit is bad for seeking partial partition.
3.2 The plaintiffs now filed a re-joinder in which they would plea and clarify that even though item 4 comprises of house on a site measuring 1,417 sq.ft, only 630 sq.ft is as shown in the plaint is available and the balance is not available. Turning to the other property in S.No.600/2A, this property is in the name of a third party and therefore, it is not available for partition too.
4.1 The dispute went to trial. By now both the plaintiffs had passed away and their legal representatives were impleaded as the plaintiffs 3 to 8 and one such heir, who did not join the other heirs of the plaintiffs came to be impleaded as 7th defendant.
Approach of the Courts below:
4.2 During trial, the
