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2012 DIGILAW 477 (MAD)

Chakrapani Mudaliar v. Mallika Ammal

2012-01-31

T.RAJA

body2012
Judgment :- 1. The plaintiff after loosing his case before both the Courts below preferred the Second Appeal aggrieved by the concurrent findings of the Courts below. 2. (i)Originally, the plaintiff/appellant filed a suit seeking a decree to direct the defendant herein to deliver vacant possession of the suit property to the plaintiff/ appellant herein and on his failure to do so within a stipulated time fixed by the Court, delivery may be effected through Court and also sought for direction to enter into the future damages by separate proceedings under Order XX Rule XII CPC so as to pay the same to the plaintiff. (ii) The said suit was dismissed by the learned trial Court. Aggrieved by the said dismissal of the suit, the plaintiff/appellant herein has approached the first appellate Court, namely, the First Additional Subordinate Judge, which also confirmed the findings of the trial Court and dismissed the appeal. Against which the present appeal has been preferred by the appellant. 3. At the time of entertaining the second appeal, this Court framed the following substantial questions of law:- (i) Whether the respondent who claims to have purchased the shares of three members of a Joint family can resist the suit for possession by non-alienating coparcener? (ii) Whether the learned Subordinate Judge was in error overlooking that a purchaser from a sharer can only institute suit for general partition and not resist possession of the suit property from the other Co-parcenor? (iii) Whether the learned Subordinate Judge erred in overlooking that the transfer in favour of the respondent is hit by Section 52 of the Transfer of Property Act and the respondent cannot claim any rights in the suit property? 4. The plaintiff is the son of Palaniaandi Mudhaliar, whose younger brother is Vadivel. Both of them partitioned their property on 15.11.1967. As per partition deed, the suit property was allotted to his father which is "A" schedule property. Thereafter, in the year 1987, the plaintiff's father died intestate leaving behind his wife Rajambal, daughter-Jayalakshmi, his son plaintiff and his younger brother-Murugesan. During the life time of plaintiff's father, daughter-Jayalakshmi was given in marriage. Whileso, Jayalakshmi filed a suit in O.S.No.286/1987 asking for partition of the family property. In the said suit since all parties are impleaded, the defendants purchased the shares of Murugesan and Rajambal by sale deed dated 10.6.1988. During the life time of plaintiff's father, daughter-Jayalakshmi was given in marriage. Whileso, Jayalakshmi filed a suit in O.S.No.286/1987 asking for partition of the family property. In the said suit since all parties are impleaded, the defendants purchased the shares of Murugesan and Rajambal by sale deed dated 10.6.1988. Since the suit property has been sold during the pendency of the suit on 10.6.1988 it was pleaded that the sale will not bind the plaintiff even though the plaintiff had also sold some of the family properties as they are not part of the suit property. It was also further pleaded that the defendants did not have any manner of right over the suit property unless they accept to file a suit for partition. It was also submitted that when he had earlier filed one another suit in O.S.No.723/1988 on the file of Sub-Court, Cuddalore, on 27.6.1988 for decree of permanent injunction for restraining the defendant, as it was not properly prosecuted, the same was dismissed for default. Thereafter, the plaintiff also filed one another suit O.S.No.256/1982 against the defendants and the subsequent purchasers seeking possession and damages. The plaintiff's brother also has failed O.S.No.249/1988 asking for partition. The trial Court by holding a joint trial of O.S.No.249/1988 and O.S.No.286/1987 finally on 27.3.1991, preliminary decree has been passed in O.S.No.249/1988 granting 5/12 share. Thereafter, when appeal was filed in A.S.No.532/1991 on the file of this Court by reaching out of Court settlement, A.S.No.532/1991 arising out of O.S.No.249/1988 was withdrawn. So far as O.S.No.286/1987 is concerned, A.S.No.531/1991, arising out of O.S.No.286/1987 was pending consideration in which the defendants are not parties. 5. While advancing argument on these questions of law it was contended that the suit property was originally allotted in favour of Palaniaandi Mudhaliar by virtue of partition took place between him and his brother vadivel Mudhaliar on 15.11.1967. The land in question is a vacant house site, ad-measuring 2914 sq.ft.( 47 x 52 sq.ft). The said Palaniaandi Mudhaliar died in the year 1987 leaving his wife Rajammal, his daughter Jayalakshmi and his two sons, Chakrapnai, the plaintiff /appellant herein and Murugesan. After some time, Jayalakshmi filed a suit in O.S.No.286 of 1987 claiming 1/12 shares. Similarly, Murugesan filed a suit in O.S.No.249 of 1988 claiming 5/12 share. A preliminary decree was passed on 27.3.1991. The said Palaniaandi Mudhaliar died in the year 1987 leaving his wife Rajammal, his daughter Jayalakshmi and his two sons, Chakrapnai, the plaintiff /appellant herein and Murugesan. After some time, Jayalakshmi filed a suit in O.S.No.286 of 1987 claiming 1/12 shares. Similarly, Murugesan filed a suit in O.S.No.249 of 1988 claiming 5/12 share. A preliminary decree was passed on 27.3.1991. As against the said preliminary decree, two appeals, being A.S.Nos.531 and 532 of 1991, were also filed by the plaintiff/ appellant therein. But the appeal in A.S.No.531 of 1991 filed against the OS.No.286 of 1987 was dismissed for non prosecution on 21.10.2010. The other appeal in A.S.No.532 of 1991 filed against OS.No.249 of 1988 was dismissed as settled out of Court and thereby suit in O.S.No.249 of 1998 was dismissed as withdrawn by order dated 03.11.1997. 6. When the matter stands above, the defendant No.1, Mallika ammal, said to have purchased the suit property from Murugesan and Rajamma on 10.6.1988 consisting a share equivalent to 6/12. Further, it appears that the defendant No.1, namely, the respondent herein, was also allowed to put up superstructure. Thereafter, the plaintiff has filed the present suit for recovery of possession. 7. Since both the Courts below have non suited the prayer made by the appellant herein, the present appeal has been preferred by the appellant. 8. Mr.R.Subramaniam, learned counsel for the appellant/plaintiff submits that the plaintiff has approached the trial Court only for recovery of possession of the share to which the plaintiff is legally entitled to. Therefore, the Courts below ought not to have dismissed the suit because he is entitled to the benefit of his share. It was further submitted that since the preliminary decree dated 27.3.1991 has already been passed in OS.No.249 of 1988, the appellant is entitled to get possession till the suit for partition is filed by non alienating coparceners. Therefore, the plaintiff / appellant is entitled to work out his remedy without causing any inconvenience or prejudice to the defendant No.1, who is the subsequent purchaser of other undivided share. Therefore, the plaintiff / appellant is entitled to work out his remedy without causing any inconvenience or prejudice to the defendant No.1, who is the subsequent purchaser of other undivided share. In support of his submission, he has also relied upon the judgment of Andhra Pradesh High Court inNELLI NARASIMHA REDYY v. VADLA KRISHNAIAH AND OTHERS reported in AIR 1975 AP 250 , wherein, it has been held that the plaintiff/ appellant is entitled to protest his possession till the suit for partition is filed and if the non-alienating coparceners file a suit for recovery of possession the law is that they are entitled to get a decree subject to the declaration in favour of the plaintiff. But until that is done, the plaintiff's/ appellant's possession cannot be disturbed and he is entitled to an injunction. 9. In the present case, since the parties have already filed a suit in O.S.No.286 of 1987 and the preliminary decree has already been passed on 27.3.1991 and the appeal filed was also dismissed on 21.10.2010, it was prayed that the suit for recovery of possession has to be decreed as prayed for with further grant of stay till the final decree is passed in pursuant to the preliminary decree passed on 27.3.1991. 10. While relying upon the same judgment, Mr.R.Yashod Vardhan, learned Senior counsel for the respondent would submit that it is not a case, where this Court can interfere with the concurrent findings of the court below as the first defendant, Mallika, has purchased the undivided suit property from Jayalakshmi, Rajamma and also from Murugesan for a valuable consideration. In addition to this, the first defendant's, husband, Vaithiyalingam also has purchased 1/12 shares from Jayalakshmi and, the defendant Mallika has been in possession of the larger share in the suit property, even 10 years ago, the superstructure was also put up and thereafter the defendant has let out the suit property. Under such circumstances, the prayer for possession of the suit property without going for partition of the same cannot be legally sustainable. 11. Though the argument advanced by the learned Senior counsel for the respondent appears to be reasonable, the law stands otherwise. Under such circumstances, the prayer for possession of the suit property without going for partition of the same cannot be legally sustainable. 11. Though the argument advanced by the learned Senior counsel for the respondent appears to be reasonable, the law stands otherwise. As rightly pointed out by the learned counsel for the appellant, this Court, in the case ofKANDASWAMI UDAYAN v. VELAYUTHA UDAYAN reported inMLJ (VOL.5) 99, has held that if a suit is filed by non alienating coparcener for recovery of possession of the property, such suit can be maintained and appropriate direction can be given therein to the extent that the execution of the decree in plaintiff's favour be stayed for reasonable time and if before the expiry of reasonable time, the subsequent purchaser, who has already taken possession and enjoyment of the undivided share of the suit property, brings the general suit for partition, then the stay would continue till the date of disposal of the suit for partition. But however, if no suit for partition is prayed, stay of execution will stand cancelled. 12. The above old judgment of our High Court brings a smooth quietus to both parties herein. Inasmuch as the suit property is even now undivided among the plaintiff's family members before partition took place the shares of Jayalakshmi, Chakrabani and Murugesan were sold to defendant-Malliga Ammal. Since Malliga Ammal-defendant has purchased the suit property from Jayalakshmi, Rajambal and Murugesan for valuable consideration along with the first defendant's husband-Vaithialingam who also purchased half share, admittedly, Malliga Ammal had been in possession of the larger extent of the suit property. As a result of purchase of larger extent of suit property, by constructing buildings in the suit property, the same was also let out by Malliga Ammal. Therefore, the plaintiff before filing a suit for delivery of vacant possession of the suit property, he should have filed a suit for partition. As a result of purchase of larger extent of suit property, by constructing buildings in the suit property, the same was also let out by Malliga Ammal. Therefore, the plaintiff before filing a suit for delivery of vacant possession of the suit property, he should have filed a suit for partition. However, in view of the pendency of the case for more than two decades, accepting the ratio laid down by our High Court in the above mentioned judgments, in the interests of both parties this Court is inclined to grant a decree in favour of the plaintiff for recovery of possession of his share subject to one condition that the execution of the decree for recovery of possession of his share shall be stayed for a period of five months to enable the respondent to file appropriate application for passing the final decree for partition. If such application is filed by the respondent/defendant herein, then the stay granted by this Court for a period of five months shall continue till the disposal of the suit for partition. But if for any reason, the first defendant, Malliga Ammal, the respondent herein fails to move any application for passing final decree as mentioned above within the said period of five months, then the stay of execution granted by this Court shall stand cancelled. With this observation, the Second Appeal is disposed of. No costs. 13. However, the execution of the decree in plaintiff's favour be stayed for a period of five months to enable the respondent herein to file application for passing the final decree for partition. 14. If any such application is filed by the respondent/ defendant herein, then the stay granted by this Court for a period of five months shall continue till the disposal of the suit for partition. But if for any reason, the first defendant, Mallika, the respondent herein, fails to move any such application for passing final decree within the said period of five months, then the stay of execution granted by this Court shall stand cancelled. 15. Needless to mention that any order or direction to be passed in the final decree shall bind all the parties to the proceedings and that will become final.