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2008 DIGILAW 3677 (MAD)

W. S. Seetharam v. V. K. John & Others

2008-09-30

M.JEYAPAUL

body2008
Judgment : 1. The third defendant has filed the above application seeking rejection of the partition suit in C.S.No.423 of 1995 filed by the plaintiff V.K.John. 2. It is the case of the plaintiff V.K.John that the suit property originally belonged to Elie John, who died leaving behind K.John-the father of the plaintiff, Appu John, the deceased first defendant and Mrs.Leelie the deceased second defendant. The plaintiff V.K.John is the sole surviving heir of K.John. The plaintiff claimed 1/3 share in the suit property. The third defendant W.S.Seetharam has been impleaded as the legal heir of the deceased second defendant. On the demise of Appu John, one Prema Chandrasekar, who claimed that she is one of the beneficiaries under the Will, executed by Appu John was arrayed as fourth defendant and T.R.T.Thirumalvasi who claim that he has been appointed as Executor under the said Will was impleaded as fifth defendant in the suit. 3. In the present application filed by the third defendant, it is contended that appropriate court fee was not paid by the plaintiff who has not been in actual possession and enjoyment of the suit property. The plaintiff filed a non testamentary partition suit under the Indian Succession Act claiming only the share of his deceased father K.John. The plaintiffs fathers assets vest with the Official Assignee on adjudication as an insolvent. Therefore, no property of the plaintiffs father is available for partition. Of course, the Will dated 2. 1974 executed by Mrs.Elie John is a true and genuine one. The plaintiff, who had the Will executed by his grandmother late Mrs.Elie John, could have filed the Will even in the year 1995. The plaintiff hid his grandmothers Will for so long time. In the above circumstances, the relief of partition of his fathers share cannot be granted. Therefore, the third defendant has sought for rejection of the suit. 4. The plaintiff has filed a counter stating that the suit has been taken up for trial and the parties have already been examined. None of the conditions stipulated in Order 7 Rule 11 of the Code of Civil Procedure is existent. Once the issues are framed, the court is bound to pronounce the judgment on all issues except the issue relating to the jurisdiction of the court or bar of the suit created by any law in force. None of the conditions stipulated in Order 7 Rule 11 of the Code of Civil Procedure is existent. Once the issues are framed, the court is bound to pronounce the judgment on all issues except the issue relating to the jurisdiction of the court or bar of the suit created by any law in force. Appropriate court fee has been paid in a partition suit where the plaintiff claimed that he has been in joint possession of the suit schedule properties. The plaintiff is only seeking to add another root of title to his claim for partition of the suit schedule properties. He is entitled to claim right to the property through as many roots to the suit properties as he has. Therefore, the plaintiff has sought for dismissal of the application seeking to reject the plaint. 5. The fourth defendant has contended in the written statement that the plaintiff had suppressed wilfully and deliberately for over 12 years, the genuine Wills executed by Mrs.Elie John. The application filed by the plaintiff seeking to add a prayer to declare that he is the absolute owner of the suit schedule mentioned properties in C.S.No.423 of 1995 was dismissed by this court. Therefore, she would submit that the suit in C.S.No.423 of 1995 is liable to be dismissed. .6. The fifth defendant T.R.T.Thirumalvasi would contend that the partition suit will lie only when the original owner died intestate. After a Will has been left behind by Mrs.Elie John, the same will have to be probated in the manner known to law. The question of continuing the partition suit does not arise. The conduct of the plaintiff, who never whispered anything about the Will executed by Mrs.Elie John during the course of evidence, will have to be noted by this court. The fabricated Will is now projected to overcome the insolvency proceedings of the father of the plaintiff who was declared as insolvent and the consequent vesting of his properties in the Official Assignee. The testamentary succession and intestate succession repels each other. Therefore, the fifth respondent also would contend that the suit is not at all maintainable in law. 7. The applicant/third defendant who appeared in person would contend that the plaintiffs father has been adjudicated as insolvent as per the records available with the Official Assignee. The father of the plaintiff continues to be an undischarged insolvent. Therefore, the fifth respondent also would contend that the suit is not at all maintainable in law. 7. The applicant/third defendant who appeared in person would contend that the plaintiffs father has been adjudicated as insolvent as per the records available with the Official Assignee. The father of the plaintiff continues to be an undischarged insolvent. Only thereafter, two Wills executed by Elie John have been projected before the court. The plaintiff cannot now seek the relief of partition in intestate succession. The last Will is also not probated by the plaintiff. Appropriate court fee is also not paid, it is lastly contended. 8. Learned counsel appearing for defendants 4 and 5 also would contend that the suit which was originally filed seeking partition on the basis of intestate succession cannot be maintained when the plaintiff has now started claiming testamentary succession with an unprobated Will. 9. Learned counsel appearing for the plaintiff would contend that the suit is now progressing to finality. At this stage, the defendant cannot invoke Order 7 Rule 11 of the Code of Civil Procedure. As per Order 14 Rule 2 of the Code of Civil Procedure, only the issue relating to the jurisdiction of the court and a bar to the suit created by any law for the time being in force can be tried separately, postponing the settlement of other issues. In the written statements, the defendants failed to raise the fact that the father of the plaintiff was an insolvent. The Wills executed by Mrs.Elie John came to the notice of the plaintiff only recently. Seeking partition now on the basis of testamentary succession will only reflect a different root of title, but, the same will not alter the character of the suit. There is no necessity to probate the Will of a Christian after the amendment was produced to the Indian Succession Act in the year 2002. The third defendant has unambiguously admitted the execution of the last Will dated 2. 1974 executed by Elie John. Therefore, he would submit that the application is liable to be dismissed. 10. There is no necessity to probate the Will of a Christian after the amendment was produced to the Indian Succession Act in the year 2002. The third defendant has unambiguously admitted the execution of the last Will dated 2. 1974 executed by Elie John. Therefore, he would submit that the application is liable to be dismissed. 10. Under Order VII Rule 11 of the Code of Civil Procedure, the plaint shall be rejected where it does not disclose a cause of action or where the relief claimed is undervalued and the plaintiff failed to correct the valuation within the time frame fixed by the court or where the plaintiff fails to supply the requisite stamp paper within the time frame fixed by the court or where the suit appears from the statement in the plaint to be barred by any law. 11. Order XIV Rule 2 mandates the court to pronounce judgment on all issues notwithstanding the fact that a case may be disposed of on a preliminary issued. But, the issues of law relating to the jurisdiction of the court or a bar to the suit created by any law for the time being in force may be first tried postponing the settlement of the other issues. Therefore, the issues relating to jurisdiction and bar of a suit can be tried as preliminary issue before determining the other issue involving law and facts. 12. Order XIV deals with the settlement of issues and determination of suit on issues of law or on issues agreed upon. It also deals with the disposal of the preliminary issue before other issues. When a question arises as to whether a particular issue can be taken up separately as a preliminary issue or whether all the issues will have to be taken up together for determination, Order XIV Rule 2 would operate. Order XIV Rule 2 does not apply to a situation where the defendants come forward with sufficient grounds for rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure. The court holds that a plaint may be rejected at any stage of the suit. In other words, the rejection of the plaint is not restricted to any particular stage of the suit. The court holds that a plaint may be rejected at any stage of the suit. In other words, the rejection of the plaint is not restricted to any particular stage of the suit. The court may examine the plaint before admitting it or at any time thereafter and invoke the provisions under Order VII Rule 11 of the Code of Civil Procedure. Therefore, the argument that once the issues are framed, Order XIV Rule 2 will operate and only during the pre-issue stage, Order VII Rule 11 of the Code of Civil Procedure would apply is found to be fallacious. .13. In the cause of action paragraph of the plaint, the plaintiff has stated that cause of action has arisen as the defendants failed to agree for amicable partition as per the repeated request of the plaintiff and subsequently thereto. The suit for partition has been laid on the foundation that the plaintiff is entitled to the share of his father who is one of the sons of Mrs.Elie John as per intestate succession. No foundation has been laid in the plaint for testamentary succession to the suit properties. The plaint does not disclose any cause of action for the testamentary succession now being claimed by the plaintiff. The very character of the suit laid originally for partition claiming intestate succession gets completely diluted on account of the latest claim of the plaintiff under testamentary succession. Totally a new case is projected now to stake a claim for partition on the basis of testamentary succession. The plaint filed seeking to introduce the prayer for declaration was already negatived by this court. With the set of pleadings now available on record, the plaintiff cannot face the trial of the case inasmuch as the law does not permit the plaintiff to lead evidence without any foundation of pleadings. Without proper pleadings, the plaintiff cannot completely abdicate his original case for partition claiming intestate succession and project a totally new case based on testamentary succession. 14. It is true that the plaintiff can lay a claim for partition tracing a different root of title. But, all of a sudden, he cannot simply change the root of title and contend that he is entitled to change the root of title even during the course of trial of the case. 14. It is true that the plaintiff can lay a claim for partition tracing a different root of title. But, all of a sudden, he cannot simply change the root of title and contend that he is entitled to change the root of title even during the course of trial of the case. Various roots of title through which the claim for partition has been made should have been made a foundation in the plaint itself. Having claimed share in the suit property through his father, the plaintiff has now chosen to give up such a claim, having come to know that his father is still an undischarged insolvent adjudicated upon by the insolvent court as per the records available with the Official Assignee. Once a person is adjudicated as insolent, the entire property belongs to him vests in the Official Assignee. Though the last Will alleged to have been executed by Elie John is admitted by the third defendant, such a Will cannot be projected in the suit laid claiming partition under intestate succession. 15. As rightly contended by the plaintiff, the plaintiff, being the co-owner, is deemed to be in joint possession along with other co-owners who are in actual possession of the suit property. Therefore, it is found that the court fee has been rightly paid. .16. It is also true that the last Will executed by Elie John need not be probated under section 213 of the Indian Succession Act, 1925 after the amendment by Act 26/2002 with effect from 25. 2005. Such a Will can be projected only in a suit laid for partition claiming testamentary succession and not in a suit for partition claiming intestate succession. 117. In view of the above, it is clearly found that the plaint does not disclose any cause of action for the claim now made for partition under testamentary succession. The statement in the plaint would disclose that he claims partition through his father who has been adjudicated as insolvent and continues to be an un discharged insolvent, whose property has already been vested with the Official Assignee. Therefore, the plaintiff cannot lawfully make a claim for partition of the share of this father, whose property is deemed to have been vested with the official assignee. Therefore, the plaintiff cannot lawfully make a claim for partition of the share of this father, whose property is deemed to have been vested with the official assignee. Therefore, the plaint is liable to be rejected both under Order VII Rule 11 (a) and (d) of the Code of Civil Procedure. 118. Therefore, the plaint stands rejected as prayed for. Consequently, the application stands allowed. No order as to costs.