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2023 Supreme(Mad) 1717
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.S. SUNDAR, P.B. BALAJI, JJ.
M. Ilangovan & Another – Appellants
Versus
Murali & Others – Respondents
A.S. Nos. 372 of 2005, 749 of 2005 & 749 of 2008 & C.M.P. No. 6143 of 2005
Decided On : 18-04-2023
For the Appellant:P. Mani, Advocate. For the Respondents:R2 & R3, S. Ilamvaludhi, P. Mani, sole respondent, R. Thirugnanam, R2 & R3, Advocates. R1 & R4, Served No appearance, R4 & R5, Serve No appearance. R6, No appearance.
The main legal point established in the judgment is the validity of the Arbitration Award and the presumption of joint family property.
Headnote:
Partition - Code of Civil Procedure - Sec. 96 - O.S.No.131 of 2004, O.S.No.13 of 2008 - Sec. 17(1)(e) of the Registration Act, 1908 - Arbitration Award - Joint Family Property - Presumption of Share - Legal Heirs' Entitlement - Decree Modification
Fact of the Case:
The plaintiff sought recovery of a sum of Rs.1,70,000 and a relief of partition, claiming 1/3rd share in the suit properties. The Trial Court found the plaintiff entitled to a 50% share in one lodge and the remaining 50% to the 1st defendant. In the other lodge, it was held that the entire lodge belonged to another party. The Trial Court dismissed the suit for partition, citing partial partition and non-joinder of necessary parties.
Finding of the Court:
The Court found that the plaintiff was entitled to a 50% share in one lodge and the remaining 50% to the 1st defendant. In the other lodge, it was held that the entire lodge belonged to another party. The Trial Court dismissed the suit for partition, citing partial partition and non-joinder of necessary parties. The Court modified the decree, granting a 1/5th share to each of the plaintiffs and modifying the decree in respect of one item, granting a 6/90th share to each of the plaintiffs. The Appeals were dismissed, and there was no order as to costs.
Issues: The main issues were the entitlement to shares in the suit properties, the validity of the Arbitration Award, and the presumption of joint family property.
Ratio Decidendi: The Court held that the Arbitration Award did not require registration as it did not declare any new right or interest. The Court also found that the sale deed did not indicate the proportion in which the purchasers had contributed, and the award confirmed their respective shares based on the capital investment in the firm. The Court modified the decree, granting a 1/5th share to each of the plaintiffs and modifying the decree in respect of one item, granting a 6/90th share to each of the plaintiffs.
Final Decision: The Appeal in A.S.No.749 of 2008 was partly allowed, setting aside the decree in respect of certain items, modifying the decree in other items, and dismissing the other Appeals. There was no order as to costs.
JUDGMENT
(Prayer:-Appeal Suit filed under Section 96 of Code of Civil Procedure against the judgment and decree dated 03.02.2005 made in O.S.No.131 of 2004 on the file of the Additional District Court, Dharmapuri.
Appeal Suit filed under Section 96 of the Code of Civil Procedure against the judgment and decree dated 03.02.2005 made in O.S.No.131 of 2004 on the file of the Additional District Judge, Dharmapuri (O.S.No.32 of 2003 on the file of the Court of the Subordinate Judge, Dharmapuri)
Appeal Suit filed under Section 96 of the Code of Civil Procedure against the judgment and decree dated 27.03.2008 made in O.S.No.13 of 2008 on the file of the Additional District Court, Dharmapuri, Fast Track Court.)
Common Judgment :
P.B. Balaji, J.,
1. The array of parties before the Trial Court is being adopted for the sake of convenience.
A.S.No.749 of 2005:
2. The plaintiff filed O.S.No.32 of 2003 before the Sub Court, Dharmapuri, (subsequently renumbered as O.S.No.131 of 2004 on the file of Additional District Court, Dharmapuri) against the defendants, seeking recovery of a sum of Rs.1,70,000/- and also a relief of partition, seeking 1/3rd share of the plaintiff in the suit properties to be declared. The suit property is a lodge being run in the name and style of “Sumathi lodge” and “Shanmuga lodge”.
3. It is the case of the plaintiff that the suit property was purchased in the joint names of the plaintiff, the 1st defendant and one Shanmugam, in and by a sale deed dated 03.03.1984. The plaintiff further stated that the 1st defendant was appropriating the rental income from the said lodges right from March 1989 & that the 1st defendant had taken on lease the 1/3rd share of the plaintiff, in respect of which rents to Rs.1,70,000/- had not been paid. Despite the plaintiff issuing a notice on 05.10.2002 calling upon the 1st defendant to settle the arrears and also divide the suit property, the 1st defendant did not choose to reply to the said notice. The said notice which was followed up with another notice dated 19.11.2002, which was received by the 1st defendant on 21.11.2002. Despite the service of the second notice also, the 1st defendant did not send any reply. Defendants 2 to 4 are the legal heirs of the other co-owner of Mr.Shanmugam who had died before the institution of the suit. The plaintiff was therefore constrained to file the suit.
4. The 1st defendant filed a written statement independently. The defendants 2 and 3 filed a separate written statement. The 4th defendant chose to remain exparte.
5. Before the Trial Court, the plaintiff examined himself as P.W.1 and Exs.A1 to A7 were marked on his side. On the side of the defendants, the 1st and 2nd defendants examined themselves as D.W.1 and 2 respectively and Exs.B1 to B19 were marked.
6. The Trial Court on appreciation of the oral and documentary evidence adduced by the parties, came to the conclusion that the plaintiff was entitled to a 50% share in Sumathi lodge alone and the remaining 50% belonged to the 1st defendant. In so far as Shanmuga lodge, it was held that the entire lodge belonged to Late Shanmugam. The Trial Court held that the 1st defendant was liable to pay a sum of Rs.1,70,000/- to the plaintiff and granted relief as prayed for by the plaintiff in this regard. In so far as relief of partition, the Trial Court found that the plaintiff was not entitled to the relief of partition, much less 1/3rd share in the suit property and consequently dismissed the suit. Incidentally, the Trial Court also found that the suit is bad for partial partition and also non-joinder of necessary parties.
7. The 1st defendant aggrieved by the decree granted against him, directing him to pay a sum of Rs.1,70,000/- to the plaintiff has filed the above A.S.No.749 of 2005. Similarly, the plaintiff aggrieved by the relief of partition being negatived, has filed A.S.No.372 of 2005.
8. Thus, it can be seen that two of the three Appeals now before this Court viz., A.S.No.372 of 2005 and 749 of 2005 ari
