Second Appeal has been filed against the judgment and decree dated 3.11.2006 passed in A.S.No.13 of 2006 on the file of the learned District Judge of Nilgiris at Uthagamandalam reversing the judgment and decree dated 30.09.2005 passed in O.S.No.113 of 2000 on the file of the learned Subordinate Judge of Nilgiris at Uthagamandalam.
2. For the sake of convenience, the parties are described as per their rank and status shown in the original suit.
3. The first defendant in the suit is the appellant herein. The suit in O.S.No.113 of 2000 filed for partition seeking 2/3rd share in the suit property for the plaintiffs.
4. According to the plaintiffs, the properties belonged to one Aruldass Daniel, who died intestate on 02.09.1978 leaving behind his wife Mary Jeevi and two sons viz., William Daniel and George Daniel. William Daniel died leaving behind plaintiffs as his legal heirs and they are entitled for 1/3rd share of William Daniel. While Mary Jeevi the wife of Aruldass Daniel is entitled for 1/3rd share and the defendants, who are the legal heirs of George Daniel are entitled for the remaining 1/3rd share in the suit property. Mary Jeevi, W/o Aruldass Daniel during her lifetime, transferred her undivided 1/3rd share of property through a settlement deed to her son William Daniel on 30.10.1979. Thus, the plaintiffs are entitled for 2/3rd share. Since George Daniel failed to render proper rent account, the plaintiffs caused notice for partition and subsequently, they filed the suit in O.S.No.755 of 1995 for partition before the Sub Court of Nilgiris at Ootacamund. The said suit was dismissed for default. Later, the applications for restoration and to bring the legal representatives of the deceased first defendant George Daniel on record was filed but dismissed as abated. Therefore, the present suit in O.S.No.113 of 2000 by the surviving successors of Willam Daniel has been filed against the successors of George Daniel.
5. The defendants contested the said suit on the ground that William Daniel never married the first plaintiff and the other plaintiffs are not the legal heirs of Willam Daniel. The marriage between the first plaintiff and William Daniel was within the prohibited relationship under the Christian Marriage Act, 1872 and therefore, the plaintiffs are not entitled for any share. Further, it was contended that the earlier suit filed by William Daniel was dismissed for default, which acts as res judicata for the subsequent suit for partition. The third limb of written statement was that the entire property continuously being in possession of the defendants, so, their title is perfected by adverse possession.
6. The trial Court framed nine issues, examined P.W.1 and D.W.1 to D.W.3 as witnesses and marked Exs.A1 to A13 and Exs.B1 to B10 as documents. After considering the evidences let in by the respective parties, the trial Court dismissed the suit. On appeal by the plaintiffs, the first appellate Court re-appreciated the evidences and allowed the suit as prayed for and passed preliminary decree for partition declaring the plaintiffs are entitled to 2/3 shares in the suit property.
7. Aggrieved by the reversing judgment of the first appellate Court, the first defendant/appellant has preferred the second appeal. At the time of admission, this Court has formulated the following Substantial Questions of Law for consideration:-
“(1)Is not the present suit for partition barred under Section 11 and Order9, Rule 9 of the Code of Civil Procedure establishing when the previously instituted suit O.S.No.755 of 1995 cannot be dismissed for non prosecution?
(2) Whether the judgment and decree of the lower appellate Court vitiated by its failure to consider the impact of Christian Marriage Act to the alleged marriage by the first respondent with late H.M.William Daniel which marriage is within prohibited relationship?
(3) Whether the respondents 2 to 4 would claim right to the estate of late H.M.William Daniel especially when they were born out of an unlawful wedlock and as such they being illegitimate children of the first respondent and late H.M.William Daniel?
(4) Whether the finding of the lower appellate Court with regard to the settlement deed is vitiated by the failure to consider the applicability to Section 68 of the Evidence Act and Section 123 of the Transfer of Property Act, to the deed of settlement?”
8. The learned counsel appearing for the appellant/2nd defendant contended that the earlier suit in O.S.No.755 of 1995 for partition filed by William Daniel against George Daniel bars to the subsequent suit for partition under Section 11 of the Code of Civil Procedure. In support of his contention, he relied upon the judgment of this Court in M/s K.D.Menon and another v. M/s Panchitra, represented by its Partner Potti Srinivasalu Chetty and others reported in (2003) 1 M.L.J. 730, wherein para 8 reads as under:
“8. The doctrine of res judicata conceived in the larger public interest, which requires that all the litigation must, sooner than later, come to an end. The principle is also founded on equity, justice and good conscience, which require that a party who has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue. The expression ”heard and finally decided” occurring in Sec.11 means, a matter on which the Court has exercised judicial mind and after argument and consideration of the materials before it arrived at a decision and passed a decree. Or in other words, the said words would mean that on the issue in question, there has been an application of mind and final adjudication by a competent Court. The applicability of res judicata does not depend on the decision being ex parte or bi parte. The Supreme Court and this Court have repeatedly held that a party is as much bound by an ex parte decree as by a contested one. Only difference between an ex parte decree and bi parte decree is, whereas in the former defendant was not present in the proceedings, in the later, he was present. In order that in an ex parte decree might be res judicata, all that is necessary is that the defendant should have express notice of the pleadings and the prayer that a particular issue or matter would be decided.
(Ref.(A)Raj Lakshmi Dasi v. Banamali Sen, A.I.R. 1953 S.C. 33; (b) Ram Gobinda Dawan v. Bhaktabala, A.I.R. 1971 S.C. 664; (c)Pandurang v. Shantabai, A.I.R. 1989 S.C. 2240; (d) Thiruvengadam Mammad v. Chathamkara Ammad, A.I.R. 1929 Mad. 89; (e) H.R. & C.E. Commissioner v. V.Krishnaswami, A.I.R. 1975 Mad. 167). That being so, there is no substance in the plea of the plaintiffs that since earlier decree was one of ex parte, the same would not operate as res judicata.”
9. Per contra, the learned counsel appearing for the respondents relied upon the judgment of this Court in Baliah Nadar and another v. Rayappan and others reported in 1993 MLJ 60 wherein it is held in para 3 and 4, which reads thus:
“3.In these second appeals, it is argued that both the suits are not maintainable. In S.A.No.2262 of 1981, it is contended that it is a suit for partial partition and it is barred by the principles of res judicata in view of the dismissal of an earlier suit O.S.No.233 of 1971 filed by the plaintiff. In S.A.No.2261 of 1981, similar contentions are raised.
4.There is no substance in the argument that the suits are barred by the principles of res judicata. O.S.No.233 of 1971 was a suit for partition, which was dismissed for default. There was no decision on merits. Hence, the principles of res judicata will not apply. If the parties are co- sharers, then they are entitled to maintain a suit for partition so long as there is no division. Just because an earlier suit for partition is dismissed for default without a decision of the Court that the plaintiff is not entitled to a share in the properties, the plaintiff will not cease to be a co-sharer. Hence, a second suit is maintainable as the cause of action is a continuing one.”
10. There is a difference between the ex parte decree and the suit was dismissed for default or for abatement of appellant. From the evidence, it is found that earlier suit in O.S.No.755 of 1995 was initially dismissed for default. Later, the application has been taken out to set aside the order of dismissal under Order 9, Rule 9 of the Civil Procedure Code. While that application was pending, the defendant died and therefore, it has necessitate the plaintiffs to bring the legal representatives of the deceased first defendant on record. To avoid the cumbersome process, the plaintiffs has not chosen to file a fresh suit for partition, since it is a continuous cause of action, the earlier suit, which was dismissed not on merits, but for default, cannot bar the subsequent suit and therefore, the finding of the first appellate Court in this regard is unassailable.
11. Regarding the relationship and right to claim the property through William Daniel, the trial Court has held that the marriage between the first plaintiff and William Daniel is within the prohibited relationship and therefore, it is void. For the said purpose, it has relied upon the oral evidence of the witnesses and it has presumed that P.W.1 has deliberately deposed as if she does not know the name of her father's father. Based on the surmise and conjecture, the trial Court has concluded that P.W.1's father M.T.Joseph and her husband William Daniel's father Aruldass Daniel are sons of M.Daniel and the marriage between PW1 and her deceased husband William Daniel is prohibited under Christian Marriage Act as the marriage is incestuous. However, the above said erroneous conclusion has been rightly reversed by the first appellate Court based on Ex.A7-Marriage Certificate issued by Velankanni Church.
12. The Lower Appellate Court has held that the marriage duly registered by the competent Authority cannot be annulled, except in the manner known to law. When there is no clear evidence to show that father of William Daniel and father of the first plaintiff are sons of M.Daniel, mere suggestion and denial in the course of deposition cannot be treated as evidence. To reinforce this conclusion the first appellate Court has relied upon Ex.A6-notice issued by Mary Jeevi, W/o Aruldass Daniel wherein, she has categorically stated that the first plaintiff is the wife of William Daniel and plaintiffs 2 to 4 are her grand children born through William Daniel and the same is also well fortified by Ex.A9-legal heir certificate issued by Tahsildar of Uthagamandalam. Therefore, this ground also is not substantial to interfere with the finding of the lower appellate Court.
13. The settlement deed-Ex.A1 executed by Mary Jeevi in favour of William Daniel being a registered document and there is no specific denial about the document questioning its validity, the compliance of Section 68 of the Evidence Act and Section 123 of the Transfer of Property Act, 1882 is not a mandatory require. It is pertinent to note that Marry Jeevi died on 18.02.1994 as per Ex.A8. The settlement deed-Ex.A1 is dated 30.10.1979. After execution of the settlement deed, Marry Jeevi died only in the year 1994. The execution of the settlement deed has been known to the predecessor in title. Based on this registered settlement deed, earlier suit was filed but dismissed for default and later, steps taken for restoration also failed.
14. Under this circumstances, Ex.A6-notice dated 06.12.1980 gains significance. This notice was issued on behalf of Marry Jeevi, wife of Aruldass Daniel and the plaintiffs, wherein Marry Jeevi herself through her counsel has informed the defendants' predecessor-in-title viz., George Daniel that she has settled 1/3rd of her share in favour of her deceased son William Daniel on 30.10.1979. This was not disputed at any point of time by the defendants. While so, the first appellate Court has rightly held that Ex.A1-settlement deed is true and valid and acted upon. This Court has no reason to interfere with the above finding of the first appellate Court.
15. Lastly, the adverse possession claimed by the appellant is also not sustainable in law, because the suit was filed in the year 2000, whereas Marry Jeevi died only in the year 1994 only six years prior to the institution of the suit. The possession of co-sharer is to be construed as possession of the other co-sharers just because some of the co-sharers were not in possessed will not ipso facto confer right by prescription to the occupied after the period of limitation prescribed. In this case, the possession even presume to be adverse to the title holder can be reckoned only from the date of death of Marry Jeevi. Since the present suit was filed on 28.06.2000, the plea of adverse by prescription is also not available to the respondents.
16. For the above said reasons, the Second Appeal is liable to be dismissed. In the result, the Second Appeal is dismissed. The judgment and decree of the first appellate Court in A.S.No.13 of 2006, dated 3.11.2006 is confirmed. No order as to costs.
18.01.2017 ari Index:Yes/No Internet:Yes/No To
1. The District Judge, Nilgiris at Uthagamandalam.
2. The Sub Judge, Nilgiris at Uthagamandalam.
Dr.G.JAYACHANDRAN.J.,
ari
Judgment made in Second Appeal No.826 of 2010
18.01.2017
http://www.judis.nic.in