Chellammalu Amma v. Gopalakrishna Menon — 1965 DIGILAW 151 (KER)

JUDGMENT C. A. Vaidialingam, J. 1. In this appeal the decree of the lower court granting a partition at the instance of the plaintiffs is under challenge. 2. The appellants are defendants 59 to 73 in O. S. 4 of 1958 on the file of the District Court, Palghat, who opposed the claim of the plaintiff to maintain the suit for partition or to get a decree for partition in any manner whatsoever. But those contentions were negatived by the lower court, and ultimately the plaintiff's claim for partition of 14/50 shares was granted. That decree is under challenge in this appeal. 3. The appellants have filed an application, C. M. P. 3730 of 1965 through their advocate Mr. K. P. Madhava Menon, for permission to allow his clients to withdraw the appeal. It is stated in the affidavit in support of the said application that the disputes between the plaintiffs, the appellants and other defendants who have filed the joint statement and statements agreeing to the settlement, have been resolved, and as such they are not pressing the present appeal. On this the only course open to this Court is to permit the appellants to withdraw the appeal on the basis of the memo filed. 4. But there are certain cross objections filed by some of the parties. So far as the memorandum of cross objections filed on behalf of respondents 59, 87 and 94 to 97 are concerned, it is not pressed ; and as such dismissed. There will be no order as to costs. 5. Similarly, Mr. V. R. Venkitakrishnan, learned counsel has filed a memorandum of cross objections on behalf of respondents 47 to 51. The learned counsel states that his clients are not pressing the memorandum of cross objections and an affidavit has been filed to that effect. Therefore this memorandum of cross objections is also dismissed. There will be no order as to costs. 6. But there are the cross objections filed by two other sets of respondents, one filed by Mr. C. K. Viswanatha Iyer learned counsel on behalf of respondents 52 to 56, and the other filed by Mr. C. Unnikanta Menon learned counsel on behalf of respondents 44, 45 and 46. The learned counsel appearing in both these matters desired this Court to adjudicate on the points arising for decision in the memorandum of cross objections. C. K. Viswanatha Iyer learned counsel on behalf of respondents 52 to 56, and the other filed by Mr. C. Unnikanta Menon learned counsel on behalf of respondents 44, 45 and 46. The learned counsel appearing in both these matters desired this Court to adjudicate on the points arising for decision in the memorandum of cross objections. A preliminary objection has been raised on behalf of the appellants and other respondents on the basis of the recent decision of the Supreme Court reported in Pannalal v State of Bombay ( AIR 1963 SC 1516 ), that the memoranda of cross objections are not maintainable on the principles laid down in the said decision. That is, according to those respondents, the memoranda of cross objections filed by these parties cannot certainly be said to be directed only as against the appellants, and no exceptional circumstances have been placed by those parties to show that the circumstances justifying the filing of memoranda of cross objections by those parties as indicated in the decision of the Supreme Court as against the other respondents, have been established. 7. Mr. C. K. Viswanatha Iyer, learned counsel for respondents 52 to 56 urged two grounds of attack in his memorandum of cross objections. And in the memorandum of cross objections filed by Mr. Unnikanta Menon on behalf of respondents 44, 45 and 46, it will be seen that almost all the grounds relate only to an attack as against the decree granted in favour of the plaintiff's. I will refer to this memorandum of cross objections later. 8. Before I consider whether these memoranda of cross objections are maintainable, this Court must bear in mind the principles laid down by the Supreme Court particularly the observation at page 1520 of the decision referred to above, to the effect that "O.41 R.22 permits as a general rule, a respondent to prefer an objection directed only against the appellant, and it is in exceptional cases, such as where the relief sought against the appellant in such an objection is intermixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the question being reopened between the objecting respondent and other respondents, that an objection under O.41 R.22 can be directed against the other respondents". But the emphasis that has been laid down by the Supreme Court in the above extract is that O.41 R.22 permits as a general rule a respondent to prefer objection directed only as against the appellant. 9. In this case Mr. C. K. Viswanatha Iyer pointed out that his clients have got two grounds of attack as against the decree of the lower court. Pausing here, it may be stated that the plaintiffs and defendants 1 to 37 form one group, claiming partition of the suit properties. Defendants 38 to 54, there is no controversy, supported the claim of the plaintiffs, and also wanted partition of the properties no doubt subject to certain slight modifications. It may also be stated at this stage that the memorandum of cross objections filed by Mr. C. K. Viswanatha Iyer and that filed by Mr. Unnikanta Menon falls within this group who have supported the claim of the plaintiffs for partition in these proceedings. Defendants 55 to 57 and 59 to 73 opposed the plaintiffs claim to maintain the suit for partition and also the claim for partition as prayed for by them. The appellants in the present appeal are defendants 59 to 73 who challenge the decree of the lower court recognising the claim of the plaintiff's to have partition. Mr. C. K. Viswanatha Iyer pointed out that the quantum of shares allotted in the partition decree is erroneous. Here again it may be stated that the first group consisting of plaintiffs and defendants 1 to 37 have been given 14/50 shares, the second group consisting of both the sets of defendants, namely defendants 48 to 53 is given 15/50 shares, the third group of defendants 55 to 57 is given 10/50 shares, and the appellants have been given 11/50 shares in the suit properties. The second group of attack is regarding certain directions given by the lower court in respect of mesne profits payable by the parties concerned. 10. The objection taken by both the appellants as well as the other respondents is that both the memoranda of cross objections are not maintainable inasmuch as in this case it cannot be said that relief asked for by both sets of respondents is directed only as against the appellants. On the other hand Mr. 10. The objection taken by both the appellants as well as the other respondents is that both the memoranda of cross objections are not maintainable inasmuch as in this case it cannot be said that relief asked for by both sets of respondents is directed only as against the appellants. On the other hand Mr. Viswanatha Iyer pointed out that in respect of both the claims made by his clients, namely, regarding the quantum of shares allotted in the partition, as well as the general direction given in Para.62 of the judgment of the lower court to the effect that those who are not in possession of the properties commensurate with the share due to them are entitled to get so much of the profits as are due to them in proportion to their share from those in possession of excess properties, are matters in which the appellants are also interested. 11. The question is not whether the appellants are also not interested in the claim made by the cross objections. But the point to be considered, as laid down by the Supreme Court, is as to whether the objections can be considered to be directed mainly against the appellants. In my view it cannot certainly be considered that the cross objections filed by Mr. Viswanatha Iyer on behalf of respondents 52 to 56 can be considered to come within this class so as to enable them to maintain the objections under O.41 R.22. It may be that the direction given by the lower court either regarding the quantum of the shares or the liability for mesne profits is erroneous. I am not concerned with those aspects in these proceedings because it is perfectly open to the parties aggrieved to file regular appeals making all persons interested in that matter necessary parties and get an adjudication from this Court. Therefore I must hold that the memorandum of cross objections filed by Mr. Viswanatha Iyer on behalf of respondents 52 to 56 are not maintainable. 12. The position regarding the cross objections filed by Mr. Therefore I must hold that the memorandum of cross objections filed by Mr. Viswanatha Iyer on behalf of respondents 52 to 56 are not maintainable. 12. The position regarding the cross objections filed by Mr. Unikanta Menon, learned counsel on behalf of respondents 44, 45 and 46 is in my view far worse, because a perusal of the memorandum clearly shows that every one of the grounds raised therein does not in any manner relate to the appellants at all, but, relates only to the decree granted in favour of the plaintiffs. That certainly cannot be entertained. 13. Therefore both the memoranda of cross objections filed by Mr. C. K. Viswanatha Iyer on behalf of respondents 52 to 56 and by Mr. Unikanta Menon on behalf of respondents 44, 45 and 46 will stand dismissed. But there will be no order as to costs.