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2015 DIGILAW 1970 (MAD)

Ashok v. Viswanathan

2015-04-22

P.R.SHIVAKUMAR

body2015
JUDGMENT :- 1. The arguments advanced by Mr. S.Gokulraj, learned counsel for the appellant and Mr. D.Rajkumar, learned counsel for the respondent are heard. 2. This Second Appeal arises out of the judgment and decree of the learned Principal District Judge, Tirunelveli (Lower Appellate Judge), dated 29.08.2013 made in A.S.No.34 of 2012 on the file of District Court, Tirunelveli, confirming the preliminary decree for partition granted by the trial Court in O.S.No.97 of 2011, dated 27.03.2012 on the file of the II Additional Subordinate Judge,(District Judge-Training), Tirunelveli in respect of the suit property described in first schedule to the Plaint. 3. Ashok, the appellant herein and Viswanathan, the respondent herein are brothers. There is another brother of the parties to the suit by name Palani. The respondent herein filed the suit for partition in respect of the properties described in the plaint first and second sechedules on the premise that all the three brothers jointly purchased the suit properties and thus he was entitled to undivided one third share in the suit properties. 4. Though the case of the respondent herein/Plaintiff is that the plaint first schedule property was jointly purchased by the appellant herein/defendant, the respondent herein/Plaintiff and their brother Palani and thus the respondent herein/Plaintiff was entitled to one-third share in the properties described in the plaint first schedule, it was contended before the trial Court that the second item of suit properties was not the property purchased by the brothers jointly as claimed by the respondent herein/Plaintiff and on the other hand, it was a poramboke land occupied and enjoyed by the appellant herein/defendant exclusively. Thus the claim of the respondent herein/Plaintiff for partition in respect of the property described in the plaint first schedule was resisted disputing the claim of the respondent herein/Plaintiff that he was also a co-owner having purchased the same jointly with his brothers. 5. Of course the joint purchase of the property described in the plaint first schedule by all the three brothers was admitted by the appellant herein/defendant. 5. Of course the joint purchase of the property described in the plaint first schedule by all the three brothers was admitted by the appellant herein/defendant. But the claim for partition in respect of the said item was also resisted on the ground that the suit was bad for non-joinder of necessary party not on the ground that the other joint purchaser Palani was not impleaded as a party, but on the ground that the father of the parties to the suit namely Natarajan was not impleaded as a party. According to the appellant/defendant, though the property described in the plaint first schedule was purchased jointly by the appellant/defendant, the respondent herein/Plaintiff and their brother Palani, their father Natarajan was maintaining the property on behalf of his sons and that therefore, the failure to make him (Natarajan) as a party would make the suit for partition bad for non-joinder of necessary parties. The failure to make Palani as a party to the suit was not projected as non-joinder of necessary party, because it is the claim of the appellant herein/defendant that the one third share of Palani was conveyed by him in favour of appellant herein/defendant and thus the appellant/defendant became entitled to two third share in all. 6. Though Natarajan, father of all the parties might have been maintaining the property on behalf of his sons before the said conveyance of the one-third share of Palani in favour of the appellant herein/defendant and after such transfer on behalf of the appellant and respondent, he was only acting as an agent of all his three sons before the conveyance of the one-third share of Palani to the appellant herein/defendant and after such conveyance, as the agent of the appellant/defendant and respondent/plaintiff alone. Under such circumstances, both the Courts below have concurrently held that the non-impleadment of Natarajan would not affect the suit filed by the respondent herein/plaintiff as he was not a necessary party and the real dispute was between the appellant and respondent herein. Accordingly, both the Courts below rejected the plea of non-joinder of necessary parties and upheld the claim of the respondent herein/plaintiff that he was entitled to an undivided one third share in the property described in the plaint first schedule. 7. Accordingly, both the Courts below rejected the plea of non-joinder of necessary parties and upheld the claim of the respondent herein/plaintiff that he was entitled to an undivided one third share in the property described in the plaint first schedule. 7. So far as the property described in the plaint second schedule is concerned, the contention of the appellant herein/defendant that it was a poramboke land occupied by him and hence the respondent herein/Plaintiff could not stake any claim to it, was accepted by the trial Court and the same was confirmed by the lower appellate Court. As against that part of the decree disallowing the claim made by the respondent herein/Plaintiff in respect of the property described in the plaint second schedule, the respondent herein /Plaintiff did not file any appeal or cross-objection before the lower appellate Court. Hence the dismissal of the suit so far as the property described in the plaint second schedule is concerned, has attained its finality. 8. So far as the property described in the plaint first schedule is concerned, the share of the respondent herein/plaintiff is admitted and the plea of non-joinder of necessary party has been rightly discountenanced by the trial Court as well as the lower appellate Court. The appellant herein/defendant also has not taken any plea that the Plaintiff, though having a share in the property described in the plaint first schedule is not entitled to seek partition. The appellant herein/defendant seems to have been taken yet another plea, a meek one, that the entire sale consideration for the purchase of the property described in the plaint first schedule flew from his pocket and that hence the respondent herein/Plaintiff was not entitled to claim any share or seek any partition. Such a plea cannot be allowed to be taken in view of the provision contained in Section 4 of the Benami Transaction and Prohibition Act, 1988. The Courts below rightly discountenanced such a plea made by the appellant herein/defendant. Hence this Court does not find any defect or infirmity in the preliminary decree for partition granted by the trial Court holding that the respondent herein/plaintiff was entitled to one-third share in the property described in the plaint first schedule alone. The lower appellate Court also has not committed any error or defect in confirming the decree of the trial Court. The lower appellate Court also has not committed any error or defect in confirming the decree of the trial Court. No substantial questions of law is proved to have arisen in the Second Appeal. Hence the Second Appeal deserves dismissal at the stage of admission itself. 9. In the result, the Second Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is dismissed.