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2010 DIGILAW 1190 (MAD)

V. Angappan v. Palaniappan & Others

2010-03-23

ARUNA JAGADEESAN

body2010
Judgment :- The 6th defendant, who lost his case before both the courts below, has filed this Second Appeal against the Judgment and Decree dated 111. 2000 passed in AS.No.211/1999 by the learned II Additional District Judge, Coimbatore, confirming the Judgment and Decree dated 210. 1998 passed in OS.No.2200/1994 by the learned I Additional District Munsif, Coimbatore. 2. Thecase of the Plaintiffs/the Respondents 1 to 3 herein is as follows:- a. The 1st Plaintiff is the son of one Kandasamy. The said Kandasamy had four sons viz. (1) Palaniappan, the 1st Plaintiff, (2) Venkatachalam, (3) Sundaram, the father of the Plaintiffs 2 and 3, (4) Palanisamy and the daughter Ponnammal, the 1st Defendant. The Defendants 2 to 5 are the wife and children of late Venkatachalam, who died in the year 1981, leaving behind him the Defendants 2 to 5 as his heirs. Sundaram died on 20.2.1994 leaving behind him the Plaintiffs 2 and 3 as his heirs. The Defendants 2 to 5 are entitled to 1/5th share of late Venkatachalam. The suit property and some other property originally belonged to one Palaniappan, who is the grand father of the 1st Plaintiff. .b. After the life time of Palaniappan, his son Kandasamy and grandsons Palaniappan, Venkatachalam, Sundaram and Palanisamy, the sons of Kandasamy constituted a Hindu undivided property and they were in possession and enjoyment of the family property. Since Kandasamy did not agree for partition, his sons, Palaniappan, the 1st Plaintiff, Venkatachalam, the father of the Defendants 3 to 5 and the husband of the 2nd Defendant and Sundaram, the father of the Plaintiffs 2 and 3 herein filed a suit for partition in OS.NO.1812./1974 before the Additional District Munsif Court, Coimbatore, against Kandasamy, his another son Palanisamy and daughter Ponnammal. In that suit, a preliminary decree was passed on 21. 1977 directing the division of the property into 5 equal shares and allotment of 3 shares to the Plaintiffs therein. In pursuance of the preliminary decree, an application for passing of final decree has been filed and the same is pending. By oversight and inadvertently, the property described in the schedule in the present suit was not included in the earlier suit for partition. In October 1994, the Plaintiffs came to know about the sale of the suit property by Ponnammal and Palanisamy, Children of Kandasamy under a sale deed dated 14. By oversight and inadvertently, the property described in the schedule in the present suit was not included in the earlier suit for partition. In October 1994, the Plaintiffs came to know about the sale of the suit property by Ponnammal and Palanisamy, Children of Kandasamy under a sale deed dated 14. 1983, who were stated to have derived title to the suit property under a Will said to have been executed during the pendency of the earlier suit proceedings, when no specific share was allotted. The property conveyed to the 6th Defendant herein is the ancestral property in which Kandasamy and Palanisamy had 2/5th shares only and the Plaintiffs jointly are entitled to 2/5th share and hence, the sale in favour of the 6th Defendant inclusive of the Plaintiffs share is not valid and binding and hence, the present suit has been filed for partition and separate possession. 3. The case of the Respondents 4 to 8/the Defendants 1 to 5 and the Appellant/6th Defendant is as follows:- a. The suit is barred by time. In the earlier suit, the suit property has been left out, since it is the exclusive property of the father Kandasamy and hence, the present suit is barred by Res Judicata. The suit is bad for non joinder of necessary parties viz. legal heirs of Palanisamy one of the beneficiaries under the Will. It is incorrect to state that the suit property is the ancestral property. The late Kandasamy put up construction at his own cost and it was treated as the independent property of the father Kandasamy, who had been in enjoyment of the same throughout his life time and he bequeathed the same to his daughter Ponnammal and after her life time, to his son Palanisamy. The 6th Defendant purchased the said property in 1983 and made improvements therein. At that time, the Plaintiffs and late Sundaram were aware of the sale, but did not question the same at all and no final decree proceedings are pending in the previous suit and the Plaintiffs are not in joint possession and hence, the suit is liable to be dismissed. 4. On the pleadings of both the parties, necessary issued were framed by the Trial Court. Before the Trial Court, the Plaintiffs had marked Exs.A1 to A6 and examined the 1st Plaintiff as PW.1. 4. On the pleadings of both the parties, necessary issued were framed by the Trial Court. Before the Trial Court, the Plaintiffs had marked Exs.A1 to A6 and examined the 1st Plaintiff as PW.1. The Defendants had marked Exs.B1 to B2 and examined the first Defendant and the 6th Defendant as DW.1 and DW.2. 5. The Trial Court, after considering both the oral and documentary evidence, passed a preliminary decree and the lower Appellate Court dismissed the first appeal filed by the 6th Defendant. Hence, this second appeal has been filed by the 6th Defendant. 6. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 7. This court, while admitting this second appeal, had formulated the following substantial question of law:- (a) Whether the courts below are right to hold that the second suit filed by the Plaintiffs for partition is maintainable, when the same is hit under the provisions of Order II Rule 2 of CPC? 8. Mr.V.Bhiman, the learned counsel for the Appellant assailed the concurrent findings of the court below contending that since the Plaintiffs omit to sue in respect of suit property in the previous suit for partition, they shall not afterwards sue in respect of the portion so omitted and the present suit is barred under Order 2 Rule 2 of CPC. 9. The saidprovision have been considered in several authorities, all of which clearly accept in principle that in a partition suit where properties are left out due to the ignorance or lack of knowledge, Order 2 Rule 2 of CPC cannot be a bar. Unless it is shown that the Plaintiffs have intended to relinquish their right, it cannot be said that they have omitted for purposes of sub rule (2) of Rule 2 of Order 2 of CPC. It is the case of the Respondent that Kandasamy, the father of the 1st Plaintiff and the unmarried daughter Ponnammal, the 1st Defendant herein and her brother Palanisamy, who was also unmarried at that point of time were living in the said house and it was left out to Kandasamy who is one of the co-owners and further his possession was not adverse to that of other co-owners. But when they came to know that the suit property had been bequeathed to Palanisamy who in turn sold to the 6th Defendant without the knowledge of the other co-owner, the present suit has been filed. 10. In the earlier partition suit, none of the joint family members pleaded any ouster. It is pleaded by the Plaintiffs that the property is a coparcenary property and the other co-owners have no knowledge about the existence of the suit property, as it was in occupation of Kandasamy and his heirs, which is a residential house. Further, the omission to include this property has not been raised by the parties. 11. The question of partial partition was not raised in the earlier litigation. If it had been contended that some other properties were left out, it was quite possible that action could have been taken by the Plaintiffs, who were also parties in the said suit to have the disputed property included in the hotchpot. 12. When a similar question arose for determination in a suit for partition in a Patna Case, the learned Single Judge of the Patna High Court, in the case of Sm.Jasoda Kumari Sewani Vs. Sm.Satyabhama Sewani, [AIR—1960-Pat-76] after examining the law applicable to a case of this type held:- "...... it is manifest that, after a decree has been passed in a suit for partition of the joint family property, a subsequent suit for partition may be brought in respect of any portion of that property which, by mistake, or inadvertence, or due to ignorance or to oversight, or by consent of the co-owners, was omitted in the former suit, and if no objection is taken by the party concerned to a partial partition the subsequent suit for partition of the portion of the property so left out and still held in joint possession, would be maintainable. If by mistake, or the like, acting innocently and fairly, a partition of a portion only of their estate has been made, whether by order of the Court or otherwise there is no reason why the Court should not grant a division of the remainder at the instance of one or more of the co-owners. In such a case, there could be no omission to sue within the meaning of Rule 2 of Order 2 of the Code." 13. In such a case, there could be no omission to sue within the meaning of Rule 2 of Order 2 of the Code." 13. In another decision dealing with this aspect of the matter in the case of Venkatasubbamma Vs. Venkata Subbamma [AIR-1964-AP-124] Jaganmohan Reddy, J., (as he then was) considered many authorities and ultimately held that a suit would lie in almost similar circumstances as in the present case. Keeping in view the legal position as indicated above, I would hold that the present claim was not hit by Order 2 Rule 2 of CPC. There could be no scope to arrive at a finding by speculation or by drawing an inference from mere fact that on the earlier occasion, this item had been left out in the hotchpot in the partition. I would hold in view of the concurrent finding that the property had been acquired from the joint family funds and the Plaintiffs present claim is entitled to succeed. The fact that the Defendant on the earlier occasion had not raised the plea that the present suit property had been left out from the hotchpot and the assertion of the Plaintiffs in the present case that the existence of this property as a joint family asset was not known to him would make it clear that such a suit in such circumstances is maintainable. Mere failure to mention this property would not bring the case within the bar provided under Order 2 Rule 2, Civil Procedure Code. It is quite possible that the Plaintiffs on the earlier occasion had no materials to find that this was a property which had been acquired out of joint family nucleus. Subsequently when they came to know that this was acquired out of joint family nucleus and one of the co-owners bequeathed this property without the knowledge of the other co-owners to his heirs, they Plaintiffs have come forward with the suit. 14. In view of the reasons stated above, the present suit filed by the Plaintiffs for partition is maintainable and the substantial question of law is answered against the Appellant. Further, this court also do not find any infirmity or illegality in the concurrent findings of the courts below, warranting interference by this court or besides. 15. In the result, this second appeal fails and the same is dismissed. No costs.