Research › Search › Judgment

Madras High Court · body

2021 DIGILAW 3533 (MAD)

V. Saroja v. V. Balasubramania Chettiar

2021-12-16

S.S.SUNDAR

body2021
ORDER : S.S. Sundar, J. 1. This Civil Revision Petition is directed against the order dated 13.04.2015 made in IA. No. 689/2006 in OS. No. 300/1974 on the file of the learned Principal District Munsif, Cuddalore. 2. Brief facts that are necessary for the disposal of this Civil Revision Petition are as follows. 3. The revision petitioners claim that they are the legal heirs of the 2nd defendant in the suit in OS. No. 300/1974. It is stated that the 1st petitioner is the wife and petitioners 2 and 3 are the sons of the late Velayutham Chettiar. It is admitted that one Dhandapani Chettiar filed a suit for partition for his share in the suit property in OS. No. 300/1974 before the Sub Court, Cuddalore. The dismissal of the suit by the Court below was confirmed by this Court in the First Appeal and in the Letters Patent Appeal. It is also admitted that the Hon'ble Supreme Court had reversed the judgment and decree of the Lower Court and held that the plaintiff and Dhandapani Chettiar and defendants 2 to 9 are the only legal heirs of Rajathiammal entitled to succeed to the properties of Rajathiammal. 4. Unfortunately, during the pendency of the appeal before the Apex Court, it is stated that late Velayudam Chettiar died on 09.06.1997. The appellant also did not take any steps to implead the legal heirs of the said Velayudam Chettiar. However, the revision petitioners herein, filed an application in IA. No. 689/2006 in OS. No. 300/1974 to implead themselves as defendants in the suit in the capacity of legal representatives of the deceased 2nd defendant-Velayudam Chettiar for proper adjudication. The said application was resisted by some of the parties to the suit on the ground that they cannot get a preliminary decree after the period of limitation. 5. The contesting respondent in this revision petition, namely 18th respondent, was arrayed as the 26th respondent in the Interlocutory Application before the Lower Court. He filed a counter affidavit, intrinsically admitting the revision petitioners herein as the legal representatives of the deceased Velayudam Chettiar. It is contended by the 18th respondent herein that in a suit for partition, the defendants are bound to pay Court fee in order to obtain a preliminary decree in their favour and therefore, there should be a prayer. He filed a counter affidavit, intrinsically admitting the revision petitioners herein as the legal representatives of the deceased Velayudam Chettiar. It is contended by the 18th respondent herein that in a suit for partition, the defendants are bound to pay Court fee in order to obtain a preliminary decree in their favour and therefore, there should be a prayer. Since the revision petitioners are the legal representatives of the deceased/2nd defendant under whom they derive title, failed to seek a preliminary decree by paying the Court fee, it is stated that the petitioners cannot get a preliminary decree. The 18th respondent herein further contended that the impleading application is barred by principle of res judicata and therefore, the revision petitioners are not entitled to get themselves impleaded. 6. A reading of the counter affidavit also indicate that the 18th respondent herein treated the Interlocutory Application as one filed by the petitioners herein for passing of final decree rather than an application to get themselves impleaded as parties to the suit. It is also contended by the 18th respondent herein/26th respondent in the Application that the petitioners' application even if it is treated as one for passing of a preliminary decree, the application being filed beyond 12 years, is hopelessly barred by limitation. It is further stated that the 18th respondent herein has prescribed title by adverse possession against all parties and that the rights of the petitioners herein had been extinguished by lapse of time. 7. The Lower Court however dismissed the application on the ground that the revision petitioners herein have not proved themselves to be the legal representatives of the deceased Velayudam Chettiar. Since some of the respondents denied the status of the 1st petitioner herein as the wife of Velayudam Chettiar and contended that the 1st petitioner herein was just living with Velayudam Chettiar, it appears that they have also objected for impleading the revision petitioners herein in the suit. The Trial Court did not even consider the objections raised by the 18th respondent herein/26th respondent in the Interlocutory Application before the Lower Court. However, the Trial Court dismissed the Interlocutory Application on the ground that the petitioners herein have not proved that they are legally entitled to come on record as the legal representatives of the deceased Velayudam Chettiar. 8. However, the Trial Court dismissed the Interlocutory Application on the ground that the petitioners herein have not proved that they are legally entitled to come on record as the legal representatives of the deceased Velayudam Chettiar. 8. In an application filed by the revision petitioners herein under Order 1 Rule 10 CPC to implead themselves as parties, the Court has to see whether the parties are entitled to come on record to represent the deceased so as to protect their interest as legal heirs in continuation of the deceased. It is at that stage the Court need not embark on actual proof of their legal status which shall be gone into at a later point of time. 9. In the present case, the application filed by the revision petitioners herein is only to implead themselves as parties so that they can file appropriate applications to get their share allotted as legal representatives of the deceased Velayudam Chettiar. The said application cannot be dismissed in limini. 10. As regards the 18th respondent herein/26th respondent in IA. No. 689/2006m he has no issue to recognise the revision petitioners as the legal representatives of the deceased Velayudam Chettiar. However, he has pleaded ouster and adverse possession against the petitioners herein for not getting a preliminary decree within twelve years. The contention if the 26th respondent in IA. No. 689/2006 who is actually the 18th respondent in this Civil Revision Petition, cannot be accepted. 11. Even after passing of preliminary decree, there can be enlargement of shares or diminishing of shares due to subsequent events. Therefore, it is always open to the Court to modify preliminary decree at the request of parties if the circumstances warrant. Absolutely, there is no bar to pass multiple preliminary decrees depending upon contingencies that may arise. In the instant case, the learned counsel for the 18th respondent herein has submitted that the revision petitioners cannot be impleaded as parties without declaration of their share in the suit properties. It is also stated by the learned counsel for the 18th respondent herein that the revision petitioners cannot be impleaded as the suit is not pending. 12. As pointed out earlier, the decree in a partition suit is just a preliminary decree and the preliminary decree can be altered depending upon the events that may happen before passing of final decree. 12. As pointed out earlier, the decree in a partition suit is just a preliminary decree and the preliminary decree can be altered depending upon the events that may happen before passing of final decree. In the present case, it is unfortunate to note that Velayudam Chettiar died during the pendency of the Appeal before the Hon'ble Supreme Court and the legal heirs were not impleaded. Therefore, the revision petitioners cannot be blamed for not getting themselves to be impleaded when the preliminary decree was altered by virtue of the judgment of the Apex Court. 13. The right of revision petitioners, as legal representatives of a legitimate shares in a partition suit cannot be shut down on mere technicality, particularly in view of the legal position in respect of suits for partition. Therefore, this Court, for the reasons stated above, is unable to sustain the order of the Lower Court passed in dismissing the Interlocutory Application filed by the revision petitioners herein. 14. In the result, the Civil Revision Petition is allowed setting the order dated 12.04.2015 made in I.A. No. 689/2006 in OS. No. 300/1974 by the learned Principal District Munsif, Cuddalore. 15. The petitioners herein has filed CMP. No. 7882/2019 to receive the documents to support their case that they are the legal heirs of the deceased Velayudam Chettiar. Though the Legal Heirship Certificate issued by the Tahsildar and other documents are official records, the said Miscellaneous Petition stands closed with liberty to the revision petitioners to produce the documents before the Lower Court and the Trial Court may mark the documents which will be of some relevance at the time of passing final decree, in terms of the preliminary decree. If any of the respondents have any objections, it is open to them to raise their objections and the Lower Court will also consider if necessary. 16. However, since this Court has allowed the Civil Revision Petition, setting aside the order passed by the Lower Court in IA. No. 689/2006, the Interlocutory Application in IA. No. 689/2006 stands allowed and the revision petitioners are directed to be impleaded as defendants in the suit in OS. No. 300/1974. The revision petitioners can file necessary application for getting their share declared. 17. No. 689/2006, the Interlocutory Application in IA. No. 689/2006 stands allowed and the revision petitioners are directed to be impleaded as defendants in the suit in OS. No. 300/1974. The revision petitioners can file necessary application for getting their share declared. 17. If the revision petitioners herein file an application for passing of final decree or get themselves impleaded as parties in the final decree proceedings, it is open to them to do so. However, all other respondents are entitled to raise their objections with regard to allotment of shares to the revision petitioners herein. No costs.