This second appeal has been filed against the Judgment and Decree dated 22.03.2000 passed in A.S.No.121 of 1999 by the learned II Additional District Judge, Erode, modifying the judgment and decree dated 19.07.2015 passed in O.S.No.78 of 1992 on the file of the learned Subordinate Judge, Dharapuram.
2. The second defendant is the appellant herein. The trial Court while allowing the suit for partition, had held that the alienation in favour of this appellant by the first defendant as valid transaction and excluded that portion of the property from partition. The first appellate Court omitted to determine the correctness of this finding and hence, this appeal.
3. The brief facts, which led to the filing of this second appeal, are as follows:
(i) The suit is for partition filed by the first respondent herein alleging that the suit properties are her ancestral properties. The first defendant, who is the father of the plaintiff, was the kartha of the family. He became addict to drink and driven away his wife and daughter from the matrimonial home on 10.01.1991. Therefore, the mother of the plaintiff, on her behalf and on behalf of her minor daughter filed O.S.No.198 of 1991 against the first defendant for maintenance and the said suit was compromised out of Court. Hence, the plaintiff's mother withdrew the suit. After some time, again, the first defendant driven away the plaintiff and her mother. The plaintiff came to know that her father, who is the first defendant, in order to cheat her, created documents alienating the ancestral properties and further found that he had entered into an agreement with one Muthusamy, who was impleaded as second defendant in the suit, in respect of two acres of land in Survey No.273. The said Muthusamy filed a suit for specific performance in O.S.No.129 of 1991. Due to amendment of the Hindu Succession Act, the plaintiff is also entitled to a share in the ancestral property. Therefore, she sought for partition. The first defendant refused to give her share. Hence, she filed a suit for partition by metes and bounds of the suit schedule property.
(ii) The first defendant filed his written statement wherein, it is stated that in the suit schedule properties, item Nos.1, 2, 3, 4 and 7 are the ancestral properties and he denied the nature of the properties, which are shown as item Nos.5 and 6 of the suit properties. According to the first defendant, item Nos.5 and 6 of the suit properties are his self acquired properties and no one else has the right over the property. Item Nos.1, 2, 3, 4 and 7 of the suit properties were divided among the children of Angamuthu Gounder, who died 27 years ago. In the said division, the first defendant got 5/8 share in those properties and his mother and two sisters got 1/8 share each. On 18.07.1990, the sister of the first plaintiff relinquished her respective share in favour of the first defendant and her mother Palaniammal. By virtue of the release deed, the first defendant has 6/8 share and his mother Palaniammal has 2/8 share in the suit item Nos.1 to 4 and 7. Therefore, in respect of these items of the properties, Palaniammal is a necessary party who hold 2/8 share. Therefore, the suit is bad for non-joinder of Palaniammal.
(iii) In respect of item Nos.5 and 6 of the suit properties, which were purchased from the independent income of the first defendant. The mother of the plaintiff already initiated a partition suit in O.S.No.140 of 1991 on behalf of the plaintiff and the same was dismissed. Therefore for the very same relief, the plaintiff cannot file subsequent suit to claim ratio of the share and the same is not sustainable. Therefore, the suit has to be dismissed.
(iv) The second defendant, in his written statement, contended that the plaintiff and the first defendant are colluding together and filed the present suit to defeat his right. Insofar as the suit filed for specific performance is concerned, an agreement was entered into by the first defendant with him in respect of two acres out of 5.88 acres in Survey No.273. The Court has already decreed the suit filed for specific performance by him in O.S.No.129 of 1991 vide judgment dated 08.04.1992. Hence, the present suit is liable to be dismissed for res judicata and non joinder of necessary party. The third defendant, who is the mother of the first defendant, got herself impleaded in the suit and filed written statement subsequently to support the case of the first defendant, sought for dismissal of the suit.
(v) The trial Court, after considering the deposition of the respective parties and Exs.A.1 to A.3 and Exs.B.1 to B.5, has restricted the claim of the plaintiff to 2.5/8 share instead of 1/2 share and in respect of two acres of land sold to the second defendant, the trial Court has held that in the light of the decree passed in the suit for specific performance filed by the second defendant, his right need not be disturbed.
4. The first appellate Court omitted to discuss about the findings in respect of the two acres of land in item No.4 of the suit schedule property. Hence, this appeal is preferred by the second defendant.
5. At the time of admission, this Court has formulated the following substantial questions of law for consideration:
"Whether the lower appellate Court was right in including the properties released by co-sharers exclusively in favour of the respondents 2 and 3 into the common pool while dividing the properties by partition among the respondents?
2.Whether the lower appellate Court has correctly appreciated the decree obtained by the appellant under Ex.A.9?".
6. The trial Court while dealing with issue Nos.1, had observed as under:
“The sale agreement with the second defendant in respect of item No.4 of the suit schedule property is held valid. The second defendant is entitled for specific performance while effecting division of the suit properties. The Commisisoner shall take into all these alienation and apportionment the shortage in item No.6 to the plaintiff from the other items of the suit properties.“
7. On considering the judgments of the trial Court and the first appellate Court, the contention of the appellants appears to be correct. While the trial Court has recognised the decree passed in the specific performance suit and protected the interest of the decree holder under Ex.A.9 in respect of two acres of the land purchased by him from the first defendant, the first appellate Court has not deliberated about it. This omission has caused apprehension in the mind of the appellant to prefer this appeal. This Court is of the opinion that it is the duty of the Court to disspell the apprehension since the observation of the trial Court in favour of the second defendant/appellant is omitted to be confirmed by the appellate Court. Therefore, except reiterating the said observation of the trial Court, nothing further requires to interfere in the second appeal.
8. Accordingly, this second appeal is dismissed confirming the observation of the trial Court in respect of Ex.A.9 decree. The judgment and decree of the first appellate Court in A.S.No.237 of 1995, dated 03.10.1996, is confirmed. There is no order as to costs.
03.01.2017 Index:Yes/No Internet:Yes/No cla To
1. The II Additional District Judge, Erode.
2. The Subordinate Judge, Dhrapuram.
3. The Section Officer, V.R.Section, High Court, Madras.
Dr.G.JAYACHANDRAN,J.
cla Judgment made in S.A.No.1926 of 2000 3.01.2017 Pre-delivery Judgement made in S.A.No.1055 of 2008 and M.P.No.1 of 2008 THE HON'BLE DR.JUSTICE G.JAYACHANDRAN Most respectfully submitted (ari) P.A. To the Hon'ble Judges
2. Aggrieved plaintiff is before this Court as appellant. The suit is filed for declaration and permanent injunction in respect of the suit property. The plaintiff claims the suit property as an ancestral property and he is the absolute owner of the same, after the death of Marappa Gounder, who bequethed the same to him. To substantiate the same, the plaintiff/appellant filed a sale deed dated 21.10.1970 executed by one Periasamy in favour or Marappa Gounder. The said Marappa Gounder had two sons who are the defendants 1 and 2 in the suit. The plaintiff is the son of the second defendant. Since the plaintiff's father was a drunkard and spent thrift, Marappa Gounder executed a Will in favour of the plaintiff on 21.02.1992 and bequethed the suit schedule property in favour of the plaintiff. In order to defeat the right of the plaintiff, the defendants 1 to 3 have colluted among themselves and created documents in respect of the suit property and caused encumbrance and vexatious claim before the Court of law, through which they want to defeat the lawful right of the minor plaintiff. They are now trying to tresspass into the suit property foribly. Hence, the suit came to be filed for declaration and permanent injunction.
3. The first defendant in his written statement denied the allegations made in the plaint. According to him, Marappa Gounder purchased the suit property out of joint family income and partitioned the same and allotted to the defendants 1 and 2 through partion dated 18.06.1986. Since then, they are in possession and enjoyment of the property separately and peacefully. Thereafter, the took their respective shares of defendants 1 and 2 i.e., southern half of the property an extent of 1440 sq.ft and northern portion to an extent of 1440 sq.ft and got it registered. The first defendant has filed a suit in O.S.No.1344 of 1993 before the District Munsif Court, Erode in respect of the suit property and had obtained a decree in his favour of 10.06.1994. In the light of the previous Judgments, the present suit is not maintainable. The plaintiff who was minor cannot be represented by his maternal uncle Palanisamy without leave of the Court, moreso, while his mother and natural father alive and while the minor still under the care and protection of his mother and natural guardian. This suit is filed with an intention to delay the execution of the decree passed in O.S.No.1344 of 1993 and deprive the first defendant from enjoying the fruits of the decree. This has been done at the instigation of the third defendant's brother. The alleged Will of Marappa Gounder dated 21.02.1992 has no binding effect on the defendant and is not valid under law and further it does not relate to the suit property.
4. The trial Court, after considering pleadings of the respective parties, has framed 14 issues and 5 witnesses were examined on behalf of the plaintiff and 18 documents were marked on the side of the defendants.
5. The Trial Court decreed the suit and granted the relief of declaration and permanent injunction in favour of the plaintiff. In an appeal filed by the first defendant, the first Appellate Court disbelieved the plaintiff's contention that Marappa Gounder executed a Will Ex.A3 in favour of the minor plaintiff. The claim of the plaintiff that in 1992 when he was seven years old, he came to know about the Will executed by the grandfather viz., Marappa Gounder in his favour and handed over the custody of the same to PW.1-his maternal uncle, is totally unbelievable and concocted. Further, the first Appellate Court has held that even if the Will by Marappa Gounder is accepted, such a Will could not have been executed by Marappa Gounder in a sound disposing state of mind. The suspicious circumstances under which, the Will was executed, the inconsistencies in the evidence given by the attesting witnesses and the scribe, adding to the fact that the Will not containing the signature of Marappa Gounder, but his left hand thumb impression. Thus, driven the appellate Court to reject the Will marked as Ex.A3 by allowing the first appeal, the suit was dismissed, reversing the judgment of the trial Court. The minor plaintiff who is aggrieved by the judgment of the first appellate Court, has prefered the second appeal before this Court. Pending the second appeal, he has attained majority and was declared as major by order made in C.M.P.No.19451 of 2016.
6. The learned counsel for the appellant attacked the findings of the first appellate Court Will and contended that the judgment of the first appellate Court is perverse and is liable to be set aside.
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