The plaintiffs are the appellants herein.
2. The suit is filed by the plaintiffs for partition and separate possession of their 1/4 share in the suit properties.
3. The plaintiffs and the first defendant are brothers. They are sons of one Mahali alias Nallan. Mahali alias Nallan had three more brothers viz., late Ponnusamy, Jeevarathinam, the 12th defendant herein and Gnanamuthu, the 13th defendant herein. The said Ponnusamy died in the year 1976 leaving behind the second defendant and defendants 3 to 11 as his legal representatives. The 14th defendant is a purchaser of a portion of the common property purchased from the 12th defendant. The 15th defendant is also a purchaser of a portion of the property from the deceased Ponnusamy. The 16th defendant is also another purchaser of a common portion from the 13th defendant.
4. The plaintiffs would contend that they are entitled to 1/4 share in the suit properties, defendants 2 to 11 and the 15th defendant are entitled to 1/4 share in common, 12th defendant and 14th defendant are entitled to /14 share and 13th defendant and the 15th defendant together are entitled to 1/4 share in common. Having thus contended, the plaintiffs have sought for < share in the suit properties.
5. Except defendants 12 to 14, all other defendants remained ex part before the Trial Court.
6. It is the contention of the 12th defendant that the plaintiffs are not entitled to claim any share in the suit property much less 1/4 share therein. There was a partition suit in O.S.No.25 of 1960 on the file of the Subordinate Court at Erode. A preliminary decree was passed pursuant to the compromise struck by the parties. Therefore, the plaintiffs have to work out their share by further prosecuting the suit in O.S.No.25 of 1960. The 12th defendant also sold his share in item 1 to the 14th defendant who is in possession and enjoyment of the same, it has been contended.
7. The 13th defendant filed written statement contending that the suit is not maintainable and is barred by res judicata. Even during the life time of Muniya Maistry, he partitioned the ancestral properties into five equal shares and gave each of his sons one such share. He executed a registered Will dated 4.1.1948 in favour of his second wife Maral. The said Maral, in turn, settled the properties got under the Will in favour of her two sons Jeevarathinam and Gnanamuthu, defendants 12 and 13 herein. The plaintiffs do not have any right over the said property. The plaintiffs and the first defendant filed a suit in O.S.No.25 of 1960 for partition of the suit properties into four equal shares. It was compromised and a compromise decree was passed on 15.2.1961. Therefore, the 13th defendant prays for dismissal of the suit.
8. The 14th defendant has contended in the written statement that the plaintiffs are entitled to only 1/5 share in the suit property excepting the portion which was already dealt by their father. The plaintiffs have purposely suppressed the earlier suit which ended in a compromise preliminary decree. Therefore, the present claim of the plaintiffs' 1/4 share in the suit properties is unsustainable. The plaintiffs are barred from filing the present suit, it has been contended.
9. In the reply statement, the plaintiffs have contended that the first defendant herein, joining the other defendants, had allowed the suit to be decreed conclusively. There was also undue influence or coercion on the first defendant who represented the plaintiffs when they were minors during the prosecution of the suit in O.S.No.25 of 1960. As the said decree was not acted upon, no relevance could be placed upon the said decree.
10. On the side of the plaintiffs, the first plaintiff was examined as PW1 and two documents were marked on their side. The 12th defendant was examined as DW1 and five documents were marked on his side.
11. The Trial Court, having adverted to the materials on record, returned a finding that inasmuch as the final decree petition was not at all filed by any of the parties, pursuant to the preliminary decree passed in O.S.No.25 of 1960 on the file of the Sub Court, Erode, the present suit was not barred. The Will executed by Muniya Maistry in favour of his wife Maral and the alleged settlement deed executed by the said Maral in favour of defendants 12 and 13 were not produced. The Trial Court has held that the plaintiffs have established that they are entitled to 1/4 share and therefore, they are entitled to preliminary decree as prayed for.
12. The first appellate court upset the findings of the Trial Court on the ground that there was no reference made by the plaintiffs in the present suit with respect to the earlier decree in O.S.No.25 of 1960 wherein the plaintiffs were one of the parties. No relief for partition could be claimed unless the said decree staring at the plaintiffs was set aside. Therefore, the preliminary decree in O.S.No.25 of 1960 was a bar for the present suit. Further, the plaintiffs, who were 19 years and 14 years old respectively at the time when preliminary decree in O.S.No.25 of 1960 was passed by the Sub Court, Erode, chose not to challenge the said final decree within three years on attaining majority. Having thus found, the first appellate court non-suited the plaintiffs.
13. At the time of admission of the second appeal, the following substantial questions of law were formulated by this court for determination:-
"1. Whether ignoring to consider an exhibit does not raise a question of law calling for interference under Section 100 of the Code of Civil Procedure.
2. The earlier decree has been obtained by fraud and hence whether
section 44 of the Evidence Act is not applicable to this case."
14. Learned Senior Counsel appearing for the appellants/plaintiffs would submit that the first appellate court failed to advert to the notice Ex.A2 dated 10.6.1966 issued by the 12th defendant to the plaintiffs calling upon them to co-operate for division of the property. The 12th defendant alienated the undivided share in the suit property under Ex.B5 dated 19.2.1980 in favour of the 14th defendant. In the background of those documents, the learned Senior Counsel appearing for the appellants would submit that the preliminary decree was not acted upon. Further, the plaintiffs have now sought for 1/4 share in the suit properties. The plaintiffs also have spoken to the collusive nature of the earlier decree for partition passed by the Sub Court, Erode. The judgment of the first appellate court, passed without any specific reference to Exs.A2 and D5, is liable to be set aside, he would submit.
15. The learned counsel appearing for respondents 17 to 23 who are the legal representatives of the deceased 13th defendant would submit that the plaintiffs cannot maintain the present suit for partition unless the preliminary decree for partition passed in O.S.No.25 of 1960 was set aside. Such a course also is not legally permissible inasmuch as the plaintiffs who attained majority long back failed to challenge the preliminary decree passed in O.S.No.25 of 1960 within three years from the date of attaining majority. It is his further submission that there is no limitation for filing a petition for passing a final decree. Therefore, he would submit that the first appellate court has rightly set aside the judgment of the Trial Court and non-suited the plaintiffs.
16. There is no dispute to the fact that the first defendant herein, representing the plaintiffs, who were minors then, instituted a suit for partition in O.S.No.25 of 1960 before the Sub Court, Erode and obtained a compromise preliminary decree for partition. As rightly pointed out by the learned counsel appearing for the respondents, the plaintiffs have, for reasons best known, suppressed the partition decree already obtained in O.S.No.25 of 1960 by the first defendant representing them.
17. When a competent court has passed a preliminary decree for partition, a notice issued by one of the sharers claiming partition as though there was no decree for partition in operation would not nullify the decree passed by the competent court. The fact remains that none of the parties chose to prefer any petition praying for passing a final decree. Under such circumstances, it appears that the 12th defendant alienated his undivided share to the 14th defendant under Ex.B5. Such an act of the 12th defendant would not fortify the stand of the plaintiffs that there was no partition of the suit properties. As final decree was not passed, the 12th defendant chose to alienate his undivided share in the suit properties to the 14th defendant.
18. This court in RAJA v. RADHA AMMAL (1988-1 LW 82 has categorically held that a party to a decree is bound by the decree unless and until the said decree is set aside by the competent court. Quite unfortunately, the plaintiffs have not sought for any relief for setting aside the preliminary decree passed by the competent court in O.S.No.25 of 1960. Further, no acceptable evidence was let in by the plaintiffs to establish that there was undue influence and coercion on the first defendant, who, ultimately allowed the suit in O.S.No.25 of 1960 to be decreed conclusively. The plaintiffs who have not challenged the preliminary decree in O.S.No.25 of 1960 and sought for setting aside the said decree cannot maintain the present suit for partition.
19. That apart, it is found that the first plaintiff was aged 19 years and the second plaintiff was aged 14 years old at the time when the preliminary decree in O.S.No.25 of 1960 was passed by the learned Sub Judge, Erode on 15.2.1961. That would imply that the plaintiffs had become major long ago. If at all they have chosen to challenge the decree which was obtained when they were minors, they should have challenged the decree within three years after they attained majority. Now, the said course was also completely closed as it is barred by limitation.
20. The Supreme Court in HASHAM ABBAS SAYYAD v. USMAN ABBAS SAYYAD (AIR 2007 SC 1077), has categorically held that a final decree proceedings may be initiated at any point of time and that there is no limitation provided therefor.
21. It is true that none of the parties to the preliminary decree in O.S.No.25 of 1960 chose to initiate final decree proceedings. Just because there was a whopping delay in approaching the court for passing final decree pursuant to the preliminary decree already passed, it cannot be said that the preliminary decree has become inoperative.
22. The preliminary decree in O.S.No.25 of 1960, which was not set aside by the plaintiffs before the competent court of law still, stares at the plaintiffs. Therefore, the plaintiffs cannot maintain the present suit for the very same relief of partition as there is no limitation for initiating final decree proceedings.
23. The first appellate court has rightly held adverting to the documents in the background of the oral evidence that the plaintiffs are not entitled to maintain the suit once again for partition. Therefore, the judgment of the first appellate court is confirmed and the second appeal is dismissed giving liberty to either of the parties to initiate final decree proceedings pursuant to the preliminary decree already passed in O.S.No.25 of 1960. There is no order as to costs.
ssk.
To
1. Principal District Judge, Erode.
2. Principal Subordinate Judge, Erode