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MADRAS HIGH COURT
Honourable Mr Justice KRISHNAN RAMASAMY
SENTHILKUMAR – Appellant
Versus
MRS.NALLAMMAL,W/O SENGODA – Respondent
SA/1417/2000
PARTITION - PRELIMINARY DECREE - FINAL DECREE - LIMITATION - [O.S.No.572 OF 1983] - Preliminary decree passed in partition suit - No final decree proceedings initiated - Whether final decree proceedings barred by limitation - Held, No - Application for drawing up final decree not governed by Limitation Act - Duty of court to effect actual partition in accordance with preliminary decree - No reminder or nudge from litigant required.
Fact of the Case:
Plaintiffs filed a suit for partition of the suit property, claiming that they had purchased 1/4th share in the property from the first defendant. The first defendant had earlier executed a sale deed for 1/4th share in the property to the fourth defendant, but the plaintiffs contended that this sale deed was cancelled on the date of execution of the sale deed in their favor. The defendants contended that the suit was hit by the principles of res judicata, as the third defendant had filed a suit for partition against the first and second defendants, in which he had claimed 1/4th share in the property. They also contended that the sale deeds executed in favor of the plaintiffs and the fourth defendant were fraudulent and that the plaintiffs were not entitled to any relief.
Finding of the Court:
The Trial Court dismissed the suit, holding that the plaintiffs were not entitled to the relief claimed. The first Appellate Court reversed the Trial Court's judgment, holding that the third defendant had relinquished his rights in the property by failing to file a final decree application within the limitation period. On second appeal, the High Court held that the first Appellate Court's finding was erroneous. The court held that an application for drawing up a final decree in a partition suit is not governed by the Limitation Act and that it is the duty of the court to effect actual partition in accordance with the preliminary decree, without any reminder or nudge from the litigant.
Issues: Whether the final decree proceedings in a partition suit are barred by limitation if not initiated within the limitation period?
Ratio Decidendi: An application for drawing up a final decree in a partition suit is not governed by the Limitation Act. It is the duty of the court to effect actual partition in accordance with the preliminary decree, without any reminder or nudge from the litigant.
Final Decision: The High Court allowed the second appeals and set aside the common judgment and decree of the first Appellate Court. The judgment and decree of the Trial Court was restored.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 01.12.2022
DELIVERED ON : 10.01.2023
CORAM
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
S.A.Nos.1417 and 1418 of 2000
S.A.No.1417 of 2000:-
Senthilkumar
..
Appellant
Vs.
1. Nallammal (Died)
2. Sengoda Gounder (Deceased)
3. Sakunthala
4. Chellappan @ P.Ramasamy
5. Sellammal
6. Kandappa Gounder (Deceased)
7. Ramayee
8. Sagunthala
9. S.Sakthivel
10. S.Rathnavel
11. S.Saravanan
(RR7 to 11 Brought on record as LRs of the deceased
R2 vide order of Court dated 13.02.2018
made in CMP.No.11987 to 11989 of 2016
in S.A.No.1417 of 2000)
12. K.Pavayee
13. K.Ganesan
(RR12 and 13 brought on record as LRs of the deceased
R6 vide order of Court dated 13.02.2018
made in CMP.No.11990 to 11992 of 2016
in S.A.No.1417 of 2000)
14. S.Balagopal
15. Saraswathi
Page 1 of 21
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16. Suganeswari
17. Senthilkumar
(RR14 to 17 brought on record as LRs of the deceased
R1 vide order of Court dated 08.10.2018
made in CMP.No.17204 to 17206 of 2018
in S.A.No.1417 of 2000)
..
Respondents
S.A.No.1418 of 2000:-
Senthilkumar
..
Appellant
Vs.
1. Sengoda Gounder (Deceased)
2. Sakunthala
3. Chellappan @ P.Ramasamy
4. Sellammal
5. Kandappa Gounder (Deceased)
6. Nallammal (Deceased)
7. Ramayee
8. Sagunthala
9. S.Sakthivel
10. S.Rathnavel
11. S.Saravanan
(RR7 to 11 Brought on record as LRs of the deceased
R2 vide order of Court dated 13.02.2018
made in CMP.No.11993 to 11995 of 2016
in S.A.No.1418 of 2000)
12. K.Pavayee
13. K.Ganesan
(RR12 and 13 brought on record as LRs of the deceased
R6 vide order of Court dated 13.02.2018
made in CMP.No.11996 to 11998 of 2016
in S.A.No.1417 of 2000)
14. S.Balagopal
15. Saraswathi
16. Suganeswari
Page 2 of 21
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17. Senthilkumar
(RR14 to 17 brought on record as LRs of the deceased
R6 vide order of Court dated 08.10.2018
made in CMP.No.17207 to 17209 of 2018
in S.A.No.1418 of 2000)
..
Respondents
Prayer in S.A.No.1417 of 2000:- Second Appeal filed Under Section 100 of
the Code of Civil Procedure against the Judgment and Decree dated 29.10.1998
made in A.S.No.113 of 1997 on the file of the Second Additional District
Judge, Salem setting aside the Judgment and Decree in O.S.No.338 of 1985
dated 10.04.1997 on the file of the Additional Sub-Ordinate Judge of Salem.
Prayer in S.A.No.1418 of 2000:- Second Appeal filed Under Section 100 of
the Code of Civil Procedure against the Judgment and Decree dated 29.10.1998
made in A.S.No.93 of 1997 on the file of the Second Additional District Judge,
Salem setting aside the Judgment and Decree in O.S.No.338 of 1985 dated
10.04.1997 on the file of the Additional Sub-Ordinate Judge of Salem.
In S.A.No.1417 of 2000
For Appellant
: Mr.G.K.Muthukumar
for M/s.V.P.K.Gowtham
For Respondents
RR1, R2, R6 and R8 : Died
R3
: No appearance
R4
: M/s.N.Chinnaraj
RR5, 7, 9, 10 and 11 : No appearance
RR12 and 13
: Mr.T.Meganathan
for Mr.Suryanarayanan
RR14 to 17
: Mr.P.Dinesh Ram
For Contesting
Respondents
: Ms.J.Prithvi
Amicus Curiae
Page 3 of 21
https://www.mhc.tn.gov.in/judis
In S.A.No.1418 of 2000
For Appellant
: Mr.G.K.Muthukumar
for M/s.V.P.K.Gowtham
For Respondents
RR1, R5, R6 and R8 : Died (Steps taken)
R2
: No appearance
R3
: M/s.N.Chinnaraj
RR4, 7, 9, 10, 11
14 to 17
: No appearance
RR12 and 13
: Mr.T.Meganathan
For Contesting
Respondents
: Ms.J.Prithvi
Amicus Curiae
COMMON JUDGMENT
Feeling aggrieved and dissatisfied over the common Judgment and
Decree passed by the learned Second Additional Judge, Salem, in A.S.No.93 of
1997 and A.S.No.113 of 1997 dated 29.10.1998, thereby reversing the
Judgment and Decree rendered in O.S.No.338 of 1985 dated 10.04.1997 passed
by the learned Additional Subordinate Judge, Salem, the appellant preferred
these ap
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