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2013 DIGILAW 2639 (MAD)

R. Subramanian v. L. Saradha

2013-07-24

R.S.RAMANATHAN

body2013
JUDGMENT 1. Defendants 11 and 13 in O.S.No.212 of 1990 on the file of the Sub Court, Cuddalore are the appellants in A.S.No.747 of 1995 and the second defendant in O.S.No.212 of 1990 on the file of the Sub Court, Cuddalore is the appellant in A.S.No.180 of 1996. 2. The said suit was filed by one Saradha, the first respondent herein against defendants 1 to 13 who are her brothers and sisters. The suit was filed for partition of her 1/14 share and for recovery of possession and for mesne profits. It is the case of the plaintiff that the plaintiff and defendants 1 to 13 are brothers and sisters and they are the children of V.N. Radhakrishna Reddiar and Kamalammal and the properties mentioned in 'A' schedule belonged to Kamalammal having been purchased by her under two sale deeds dated 20.11.1953 and 4.4.1962 and the properties mentioned in B schedule belonged to the father V.N.Radhakrishna Reddiar. Radhakrishna Reddiar died in 1974 and Kamalammal died in 1982 and both died intestate. Therefore, the plaintiff and the defendants are each entitled to 1/14 share in the suit properties. As the defendants did not give the plaintiff's share, the suit was filed for partition. 3. The 11th defendant filed statement and the same was adopted by defendants 3, 4 and 13. According to the 11th defendant, the suit properties are not partiable and the suit is also bad for non joinder of necessary parties and bad for partition. The mother Kamalammal settled door No.13, Venugopalapuram Main Road to the plaintiff on 27.8.1975 and that property was not included in the suit. Similarly, door No.12 at Venugopalapuram Main Road belonged to the father and the third defendant executed settlement in respect of the property in favour of the ninth defendant and the ninth defendant sold the property to one Malathy under a registered sale deed dated 19.2.1983 and Malathy was a proper and necessary party. Door No.13F also belonged to the father and the second defendant executed a settlement deed in favour of the 8th defendant on 21.1.1980 and that was sold to one Govindarajan by the 8th defendant on 13.7.1983 and the said Govindarajan was also a proper and necessary party. Door No.13F also belonged to the father and the second defendant executed a settlement deed in favour of the 8th defendant on 21.1.1980 and that was sold to one Govindarajan by the 8th defendant on 13.7.1983 and the said Govindarajan was also a proper and necessary party. Similarly, the properties of the mother viz., No.1, South Kavara Street and Manjapakkam were also conveyed to one Padmavathi Ammal by defendants 8 and 10 and Padmavathi Ammal was not impleaded and the plaintiff and defendants 1 to 13 gave power to the 12th defendant for selling certain properties and the power agent viz., the 12th defendant sold the some properties to one Kalavathi and those properties were also not included and Kalavathi was also not impleaded and therefore, the suit was bad for partition partition and bad for non joinder of necessary and proper parties. 4. The second defendant filed statement stating that door No.13, Venugopalapuram ought to have been included in the suit schedule and the plaintiff cannot claim any right in that property and the properties mentioned in B schedule viz., door Nos.76 and 76A were concerned, the land belongs to the Railways and the superstructure was put up by the parties and therefore, the properties are not partiable. 5. The 14th defendant filed a separate statement stating that he is a purchaser of a portion of item 2 of 'A' schedule property and the same was executed by the first defendant for valuable consideration and he is not in possession of the property and the said property may be allotted to the share of defendants 1 to 6, 11 and 13 so that he can get the property from them. 6. The plaintiff filed reply statement stating that the settlement deed dated 27.8.1975 executed by Kamalammal in favour of the plaintiff and the settlement deeds executed by the second and third defendants were attested by the defendants, who were majors then with full knowledge of the contents and therefore, those settlement deeds cannot be questioned by the defendants and those properties were not included in the suit properties. 7. Defendants 1, 5 to 10 remained ex parte. 7. Defendants 1, 5 to 10 remained ex parte. The 11th defendant also filed additional statement which was adopted by defendants 3, 4 and 13 and they also contended that after the death of the father, the mother executed settlement deeds in favour of defendants 1 to 3 and Kamalammal never exercised any exclusive right over the properties and she was having only 4/5 share in the properties standing in her name and therefore, the plaintiff can claim only 1/15 share in the properties of Kamalammal. 8. On the above pleadings, the Trial Court framed the following issues:- “1. Whether the plaintiff is entitled to get a decree for partition of 1/14 share in the suit property? 2. Whether the suit is not maintainable in law? 3. Whether the suit is bad for partial partition and non-joinder of necessary parties? 4. What other reliefs, if any, is the plaintiff entitled to?” 9. Additional issue framed on 20.4.1992 is as follows:- “Whether the 14th defendant is entitled to get the property purchased by way of equity?” 10. Additional issues framed on 2.12.1993 are as follows:- 1. Whether the suit properties are not partiable? 2. Whether the house property bearing Door No.13 which has been settled by Kamalammal on 27.8.1975 in favour of plaintiff, should be added into the suit? 3. Whether the extent 725 sq. feet (406+319) comprised in the sale deed dated 21.4.1989 which is part of door No.206, should be excluded from the suit?” 11. The plaintiff examined one Lakshminarayanan as PW1 and marked 11 exhibits and the 11th defendant and the 14th defendants were examined as D.Ws.1 and 2 and marked 6 exhibits. 12. The Trial Court tried issues 2 and 3 and additional issue No.2 framed on 2.12.1993 and held that the suit was not bad for partital partition and for non-joinder of necessary parties and the suit was maintainable and the properties are also partiable and answered those issues in favour of the plaintiff. 13. 12. The Trial Court tried issues 2 and 3 and additional issue No.2 framed on 2.12.1993 and held that the suit was not bad for partital partition and for non-joinder of necessary parties and the suit was maintainable and the properties are also partiable and answered those issues in favour of the plaintiff. 13. The Trial Court also tried additional issue No.3 framed on 2.12.1993 and held that the property sold to Kalavathi was by defendants 1 to 13 and the plaintiff and that was in respect of a portion of items 2 of 'A' schedule to an extent of 725 sqft and the said extent has to be excluded from item 'A' of the plaint schedule and therefore, the plaintiff is entitled to 1/4 share out of the remaining 4854 sqft. 14. The Trial Court tried additional issue No.1 framed on 2.12.1993 and held that the plaintiff is entitled to 1/14 share in the suit properties. 15. Additional issue No.1 framed on 20.4.1992 was tried separately and it was held that the 14th defendant purchased a portion in item No.2 of A schedule and though he purchased the property after the suit, the property purchased by the 14th defendant can be allotted to defendants 1 to 6, 11 and 13 and in turn, the same can be allotted to the 14th defendant and in the result, the preliminary decree for partition in respect of 1/14 share of the plaintiff was passed. 16. It is submitted by the learned counsel for the appellants in A.S.No.747 of 1995 that admittedly, the mother Kamalammal settled the properties belonged to the father under three settlement deeds A3, A4 and A5 dated 27.8.1975 in favour of defendants 2 and 3 and the plaintiff and those properties were also liable for partition and those properties were not included in the suit schedule and some of the purchasers viz., Govindarajan, Malathy, Padmavathi and Kalavathy were not impleaded and those persons purchased the properties belonging to the father from the other defendants and therefore, in a suit for partition, all those persons must be impleaded and therefore, the suit filed by the plaintiff was bad for non-joinder of necessary parties and that was not properly appreciated by the court below. He also submitted that the land on which the building bearing door Nos.76 and 77A were constructed, belongs to the Railways and therefore, that property cannot be partitioned as the family was the owner of the superstructure and therefore, the suit properties are not partiable. 17. On the other hand, Mr. R. Balasubramanian, learned counsel for the plaintiff/first respondent submitted that the properties dealt with by the mother was accepted by the defendants and those properties were settled for marriage expenses and those transactions were of the year 1975 and therefore, the family cannot claim any right over those properties and therefore, those properties are excluded and therefore, the suit was not bad for non-joinder and for partial partition. He also submitted that having regard to the judgment in Packiam Ammal v. Pattu Ammal (1999) 2 MLJ 757 , even though the land in respect of door Nos.76 and 76A belongs to the Railways, as the family is in possession of the same, the properties are also liable for partition and therefore, there is no need to interfere with the findings of the Trial court. 18. On the basis of the above submissions, the following points for consideration arise in these appeals:- “1. Whether the suit was bad for partial partition and non-joinder of necessary parties? 2. Whether the Trial Court was right in observing that the properties purchased by the 14th defendant can be allotted to defendants 1 to 6, 11 and 13? 3. Whether the properties bearing door Nos.76 and 76A of B schedule are partiable properties?” 19. Admittedly, 'A' schedule properties were purchased in the name of the mother and B schedule property belonged to the father. Both the parents died intestate and the plaintiff and defendants 1 to 13 are their legal heirs and therefore, they are each entitled to 1/14 share in those properties. It is admitted that the properties covered under Exs.A3, A4 and A5 were not included in the partition suit and it is also admitted that those properties were settled in favour of defendants 2, 3 and the plaintiff for marriage expenses and those settlement deeds were executed in the year 1975 and attested by the other family members and therefore, the entire family accepted those settlement deeds and those documents were attested by the sons, who attained majority at that time and therefore, those properties were not included. 20. 20. According to me, the settlement deeds were of the year 1975 and the legal heirs have not challenged the settlement deed for more than 15 years and the plaintiff, who filed the suit, also accepted the settlement deed and executed those documents. The defendants also did not question the settlement and they only raised a plea that those properties were not included in the suit for partition. Once the settlement was accepted by the parties, and the parties agreed to convey the title to the settlees as per Exs.A3, A4 and A5, there is no need to include those properties in the suit for partition and those properties were rightly excluded. 21. Further, the purchasers viz., Malathy, Govindarajan, Padmavathi and Kalavathy purchased the properties covered under Exs.A3, A4 and A5 and those properties were not available for partition and the purchasers were also not necessary or proper parties and that was properly considered by the court below and the court below has rightly held that the suit was not bad for partial partition or for non joinder of necessary parties and I do not find any infirmity in the order passed by the court below and point No.1 for consideration is answered against the appellants. 22. According to me, the Trial Court, while passing the preliminary decree, ought not to have given a finding that the property purchased by the 14th defendant can be allotted to defendants 1 to 6, 11 and 13. Admittedly, the 14th defendant purchased the property during the pendency of the suit from the first defendant and at the time of passing of preliminary decree, the shares can be determined and the allotment of properties are to be decided at the time of passing of final decree. Therefore, the observation of the Trial Court that the properties purchased by the 14th defendant can be allotted to defendants 1 to 6, 11 and 13 set aside and the same can be decided at the time of passing final decree. Point No.2 is answered accordingly. 23. It is seen from the judgment in Packiam Ammal v. Pattu Ammal (supra), that though the land belonged to the Government and the superstructure belonged to the parties and they are in possession, the same can be partitioned. Point No.2 is answered accordingly. 23. It is seen from the judgment in Packiam Ammal v. Pattu Ammal (supra), that though the land belonged to the Government and the superstructure belonged to the parties and they are in possession, the same can be partitioned. Therefore, even though the landed property, in which door Nos.76 and 76A are built, belonged to the Railways, as the parties are in possession of the superstructure belonged to the parties, the same can be divided among the parties. Hence, point No.3 is also answered against the appellant. 24. In the result, the appeal is dismissed and the judgment and decree of the Trial Court are confirmed except the observation that the properties purchased by the 14th defendant can be allotted to defendants 1 to 6, 11 and 13. No costs. 25. Insofar as A.S.No.180 of 1996 is concerned, there is no representation for the appellant. As the appeal in A.S.No.747 of 1995 is disposed of on merits, A.S.No.180 of 1996 is dismissed. No costs. Appeal dismissed.