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2022 DIGILAW 244 (MAD)

Arumugam v. N. R. Thirumalaiappan

2022-01-27

R.VIJAYAKUMAR

body2022
JUDGMENT : Prayer: Second Appeal is filed under Section 100 of C.P.C, against the judgment and decree dated 31.08.1998 in A.S.No.54 of 1994 on the file of the Principal Sub Court, Tenkasi preferred against the judgment and decree dated 21.02.1994 in O.S.No.525 of 1988 on the file of the District Munsif Court, Tenkasi. 1. The defendants are the appellants. 2. The plaintiffs filed O.S.No.525 of 1988 before the District Munsif Court, Tenkasi for declaration of title and permanent injunction. The suit was decreed by the trial Court. The defendants filed A.S.No.54 of 1994 before the Principal Subordinate Court, Tenkasi challenging the decree passed by the trial Court. The plaintiffs filed a cross appeal challenging a finding of the trial Court. The First Appellate Court dismissed the appeal filed by the defendants and allowed the cross appeal filed by the plaintiffs. As against the same, the defendants have filed the above second appeal. 3. The plaintiffs had contended that the plaint schedule property belonged to the family of brothers Theertharappa Mudaliar and Nagappa Mudaliar. According to the plaintiffs, both the brothers have entered into a partition on 25.03.1916. In the said partition deed, the first schedule was allotted to the share of Theertharappa Mudaliar, the second schedule property was allotted to the share of Nagappa Mudaliar and the third schedule property was retained as a common property for both the brothers. The plaintiffs had contended that the present first schedule property is part of the suit second schedule property. According to the plaintiffs, the suit schedule second item is having an extent of 2.68 acres, in which, the south-west 22 cents is the first schedule property. The plaintiffs had further contended that the entire second schedule property namely 2.68 acres was allotted to the share of Nagappa Mudaliar. Since the first schedule property forms part of the second schedule, the plaintiffs claimed declaration of title over the first schedule property and for permanent injunction for the said property. The plaintiffs had further contended that the first schedule property having an extent of 22 cents is a Kalam and it was exclusively allotted to the share of Nagappa Mudaliar and his brother Theertharappa Mudaliar was given only a license/permission to use the said Kalam. The plaintiffs had further contended that the first schedule property having an extent of 22 cents is a Kalam and it was exclusively allotted to the share of Nagappa Mudaliar and his brother Theertharappa Mudaliar was given only a license/permission to use the said Kalam. The plaintiffs had further contended that there was a preemptive clause in the partition deed that the brothers should not alienate the properties to any third party apart from brothers. The plaintiffs are the sons of the Nagappan. According to the plaintiffs, the son of Theertharappa Mudaliar namely Ramasamy made an attempt to alienate the property to a third party. Hence, he issued a legal notice on 03.05.1981 directing him to stop any alienation. For the said legal notice, the said Ramasamy had sent a reply on 13.05.1981 stating that there is no intention on his part to alienate the suit schedule property. However, in breach of the preemptive clause, the said Ramasamy alienated the first schedule property in favour of the first defendant on 07.06.1982. Even though, the said sale deed does not refer to the first schedule property in the schedule of property, the defendants are obstructing the possession and enjoyment of the plaintiffs. Hence, the present suit for declaration of title and permanent injunction in the first schedule property. 4. The defendants filed a written statement contending that the suit first schedule was not exclusively allotted to the share of Nagappa Mudaliar, but it was retained as a common property to be used as a Kalam by both the brothers. According to the defendants, the present first schedule property is shown as third schedule in the partition deed dated 25.03.1916. As per recital in the said partition deed, the third schedule property is retained as a common property for both the brothers and hence, the contentions of the plaintiffs that it was exclusively allotted to Nagappa Mudaliar is contrary to the recitals in the partition deed. The defendants further contended that they are co-owners of the suit first schedule property and hence, the plaintiffs will not be entitled to seek a prayer for declaration of title and permanent injunction as against the co-owners. The defendants had further contended that their vendor was enjoying the first schedule property in his own right as a common owner and not as a licensee as contended by the plaintiffs. The defendants had further contended that their vendor was enjoying the first schedule property in his own right as a common owner and not as a licensee as contended by the plaintiffs. The defendants further contended that the Kalam which is a common property of both the brothers is only an appurtenant to the properties that were exclusively allotted to the share of the brothers. The defendants further contended that the preemptive clause found in the partition deed is void, unenforceable and not binding upon the defendants. The defendants further contended the sale deed in their favour dated 07.06.1982 is legally valid and they have also taken possession of the suit schedule property. Only after six years of the sale deed, the present suit for declaration of title and permanent injunction has been filed. Hence, he prayed for dismissal of the suit. 5. The trial Court came to the conclusion that the suit first schedule property having an extent of 22 cents is a common property of both brothers. The trial Court also arrived at a finding that in view of the preemptive clause in the partition deed dated 25.03.1916, the son of Theertharappa Mudaliar namely Ramasamy did not have any right to alienate the same in favour of the defendants who are the third parties to the family. The trial Court also rejected the objection raised by the defendants that without impleading Ramasamy, their vendor, the present suit is not maintainable. The trial Court arrived at the said finding on the ground that the present defendants are third parties to the family and the plaintiffs have chosen to seek a prayer only as against the third parties to the family and hence, there is no necessity for impleading the said Ramasamy. 6. As against the said judgment and decree, the defendants filed A.S.No.54 of 1994 challenging the granting of decree for declaration and permanent injunction in favour of the plaintiffs. The plaintiffs have also filed a cross appeal challenging the findings of the trial Court that the first schedule property is a common property of Theertharappa Mudaliar and Nagappa Mudaliar. 7. 6. As against the said judgment and decree, the defendants filed A.S.No.54 of 1994 challenging the granting of decree for declaration and permanent injunction in favour of the plaintiffs. The plaintiffs have also filed a cross appeal challenging the findings of the trial Court that the first schedule property is a common property of Theertharappa Mudaliar and Nagappa Mudaliar. 7. The First Appellate Court concurred with the findings of the trial Court with regard to the fact that the brothers will not have right to alienate the same to the third party and hence, the sale deed in favour of the first defendant is in violation of the said clause. The First Appellate Court also found that the sale deed in favour of the first defendant is not valid in the eye of law, in view of preemptive clause found in the partition deed. The First Appellate Court also arrived at a finding that the present first schedule Kalam has been exclusively allotted to the share of Nagappan under Exhibit A1 partition deed and only a license/permission was granted to the Theertharappa Mudaliar to use the said property as a Kalam. Based upon the said findings, the First Appellate Court reversed the findings of the trial Court with regard to the issue that the first schedule property is a common property to be used as a Kalam by both the brothers. On the said findings, the First Appellate Court allowed the cross appeal filed by the plaintiffs and dismissed the appeal filed by the defendants. As against the concurrent findings, the defendants have filed the above second appeal. 8. The second appeal was admitted on the following substantial questions of law: “a) Whether in law have not the courts below failed to see that under Ex.A1 partition deed, the plaint I schedule property Kalam was shown as common property and that there could be no injunction against co-owners and those claiming under them? (b) Whether in law the lower appellate Court was right in allowing the cross-objection of the respondents by declaring their exclusive title for the kalam when even they admitted that it was kept in common? (c) Whether in law the Courts below are not wrong in overlooking that Theertharappa Mudaliar, the other sharer is necessary and property party and that in his absence the suit itself is not maintainable?” 9. (c) Whether in law the Courts below are not wrong in overlooking that Theertharappa Mudaliar, the other sharer is necessary and property party and that in his absence the suit itself is not maintainable?” 9. The learned counsel for the appellants contended that the present first schedule property has been shown as third schedule property in Exhibit A1 partition deed. It has been specifically recited both in the preamble of the partition deed as well as in the third schedule that the properties are retained as common properties of both the brothers. According to the learned counsel for the appellants, the findings of the First Appellate Court that the first schedule property has been exclusively allotted to the share of Nagappa Mudaliar is contrary to the recital in Exhibit A1 partition deed. The learned counsel for the appellants further contended that the right of preemption is mentioned only in the third schedule and there is no such clause in the first and second schedule properties that were allotted exclusively for the brothers. The learned counsel for the appellants further contended that the right of preemption mentioned in Exhibit A1 partition deed is only a personal covenant and it is binding only upon the parties to the contract. Based upon the said personal covenant, the sale deed in favour of the first defendant cannot be declared to be invalid. He further contended that the son of Theertharappa Mudaliar namely Ramasamy had alienated several items of the properties that were exclusively allotted to him under Exhibit A1 partition deed. Those sale deeds cannot be challenged by the plaintiffs. He further contended that the right of preemption cannot be enforced as against the third party to the contract or a purchaser from a co-sharer. The learned counsel for the appellants further contended that under Exhibit A6 notice, the plaintiffs have not disclosed their intention to purchase the suit schedule properties, but only attempted to prevent the alienation of the properties. He further contended that the alienation had taken place on 07.06.1982, but the present suit has been filed only after a period of six years namely in the year 1988. Without filing a suit for enforcing the right of preemption, the present suit for declaration of title and permanent injunction is not maintainable. He further contended that the alienation had taken place on 07.06.1982, but the present suit has been filed only after a period of six years namely in the year 1988. Without filing a suit for enforcing the right of preemption, the present suit for declaration of title and permanent injunction is not maintainable. He further contended that when Exhibit A1 partition deed clearly mentions the first schedule property is a common property, the Courts below have erred in granting declaration of title and permanent injunction in favour of the plaintiffs. He further contended that without impleading the legal heirs of Theertharappa Mudaliar, the present suit is not maintainable and hit by the provisions of non-joinder of necessary parties. 10. Per contra, the learned counsel for the respondents had contended that the second schedule property having an extent of 2.68 acres was exclusively allotted to the share of Nagappa Mudaliar under Exhibit A1 partition deed. According to him, the said 2.68 acres is shown as Serial No.2 in the list of properties allotted to the share of Nagappa Mudaliar. He further contended that there is a specific recital to the effect that the first schedule property would fall within the properties allotted to the share of Nagappa. Hence, the First Appellate Court was right in holding that the first schedule property is the exclusive property of Nagappa Mudaliar and the defendants' vendor namely Ramasamy had only license/permission to use the said property as a Kalam. When the second schedule property has been exclusively allotted to the share of Nagappa Mudaliar, the trial Court as well as the First Appellate Court were right in granting a decree for declaration of title and permanent injunction as against the defendants. He further contended that there is a specific recital in Exhibit A1 partition deed that none of the brothers could alienate their respective shares in favour of the third parties. In violation of the said clause, Theertharappa Mudaliar's son Ramasamy has alienated the first schedule property in favour of the first defendant under Exhibit A8 sale deed. Hence, the said sale deed will not convey any right, title or possession over the defendants. Hence, he prayed for dismissal of the second appeal. 11. I have carefully considered the submissions on either side. 12. Hence, the said sale deed will not convey any right, title or possession over the defendants. Hence, he prayed for dismissal of the second appeal. 11. I have carefully considered the submissions on either side. 12. It is the specific case of the plaintiffs that the present first schedule property which is forming part of the second schedule property was exclusively allotted to the share of Nagappa Mudaliar under Exhibit A1 partition deed dated 25.03.1916. It is also the specific case of the plaintiffs that the another brother Theertharappa Mudaliar was granted only license/permission to use the kalam in the first schedule property and hence, the said Theertharappa Mudaliar or his legal heirs will not have any right or title to alienate the first schedule property. That apart, there is a specific clause in Exhibit A1 partition deed that the none of the brothers can alienate their shares in favour of the third parties. In view of the above said two grounds, the sale made by the son of Theertharappa Mudaliar in favour of the first defendant is not legally valid. The plaintiffs has got title and possession over the suit first schedule property, in view of the allotment made in Exhibit A1 partition deed. Hence, he contended that the Courts below have correctly granted a decree in their favour. 13. A careful reading of Exhibit A1 partition deed shows that the properties have been divided between co-sharers. The first schedule property was allotted to the share of Theertharappa Mudaliar, the second schedule property was allotted to the share of Nagappa Mudaliar and the third schedule property was retained as a common property without partitioning the same. The fourth schedule property consisted of the loan amount to be cleared by Theertharappa Mudaliar. The preamble of the said document clearly indicates that the third schedule property should not be divided and should be retained as common property of both the brothers. A perusal of third schedule also indicates that the present first schedule property is shown as first item in third schedule property of the partition deed. 14. The preamble of the said document clearly indicates that the third schedule property should not be divided and should be retained as common property of both the brothers. A perusal of third schedule also indicates that the present first schedule property is shown as first item in third schedule property of the partition deed. 14. The contention of the plaintiffs/respondents that the entire suit second schedule property consisting of an extent of 2.68 acres was exclusively allotted to Nagappa Mudaliar which is shown as Serial No.2 has to be rejected, in view of the fact that the recital in second schedule property will clearly indicate that the exclusive right over the first schedule was granted to Nagappa Mudaliar only with regard to the standing trees on the date of the document and also to the trees that are to be planted in future by the said Nagappa Mualiar. No exclusive right was granted in the first schedule property. The exclusive right that was mentioned only refers to the trees standing in the said Kalam. Hence, the contention of the plaintiffs/respondents that the first schedule property was exclusively allotted to the share of Nagappa Mudaliar is devoid of any merits. In fact, it was retained as a common property which should not be divided between the brothers. Hence, the contention of the appellants that the first schedule property is a common Kalam has to be accepted, in view of the specific recital in Exhibit A1 partition deed. 15. When the first schedule property is a common property between the said Theertharappa Mudaliar and Nagappa Mudaliar, the plaintiffs will not be entitled to get a decree for declaration of title and permanent injunction as against his co-owner namely Nagappa Mudaliar. However, the learned counsel for the respondents contended that there is a preemptive clause in Exhibit A1 partition deed which clearly shows that the co-sharer cannot alienate their properties in favour of the third parties. Hence, according to him, the sale effected by the son of Theertharappa Mudaliar in favour of the defendants is illegal, void and unenforceable. Since the sale deed in favour of the first defendant is not valid in the eye of law, the plaintiffs are entitled to a decree for declaration of title and permanent injunction. Hence, according to him, the sale effected by the son of Theertharappa Mudaliar in favour of the defendants is illegal, void and unenforceable. Since the sale deed in favour of the first defendant is not valid in the eye of law, the plaintiffs are entitled to a decree for declaration of title and permanent injunction. The issue now arises for consideration is that when there is breach of preemptive clause found in the partition deed, whether the sale deed in favour of the third party will become invalid or not. 16. It is to be noted that the right of the preemptive clause is not found either in the first schedule or in the second schedule of Exhibit A1 partition deed. The preemptive clause has been inserted only in the third schedule property, which has to be maintained as a common property between the brothers. The preemptive right is nothing but a contractual right to acquire the land belonging to another person. A preemptive clause is a primary right of calling upon the other co-sharers not to alienate it to the third parties, but to himself alone. When the other cosharers in violation of the preemptive right, alienates the property to a third party, the aggrieved co-sharer will have a consequential right of instituting a suit to exercise his preemptive right. 17. In the present case, the plaintiffs have issued a notice under Exhibit A6 on 03.05.1981. A reading of the contents in the said notice will disclose that the plaintiffs have not expressed their intention to purchase the suit first schedule property. But, their intention was only to stop the sale in favour of the third parties. The other co-sharer namely Ramasamy has sent a reply under Exhibit A7 on 13.05.1981 disputing the allegation of sale in favour of the third party. But he has chosen to alienate the properties allotted to his share under Exhibit A8 sale deed dated 07.06.1982. In the said sale deed though the first schedule property has not been specifically mentioned, it is mentioned as 'Mamoolkala Bathiyam'. According to the plaintiffs, their intention to alienate the first schedule property is in violation of the preemptive rights in their favour. 18. The plaintiffs at no point of time had expressed their intention to purchase their shares from the other co-sharers. According to the plaintiffs, their intention to alienate the first schedule property is in violation of the preemptive rights in their favour. 18. The plaintiffs at no point of time had expressed their intention to purchase their shares from the other co-sharers. Though sale has been effected on 07.06.1982, the plaintiff have not chosen to file a suit for declaration of their preemptive rights and to pray for mandatory injunction seeking reconveyance of the property in their favour. 19. The present suit has been filed after six years from the date of alienation made in favour of the first defendant. Even in the present suit, the prayer is for declaration of title and permanent injunction not to disturb their possession. If at all the plaintiffs have got right of preemption based upon Exhibit A1 contract, they have to initiate a suit within period of one year as contemplated under Article 97 of the limitation Act. The period of limitation starts to run from the date on which the purchaser had taken possession or when the sale deed does not disclose handing over of possession, then it starts to run from the date of registration of the sale deed. 20. In the present case, as per Exhibit A8 sale deed, the defendants are granted right of common enjoyment over the suit first schedule kalam. Even in the written statement, they have specifically contended that they are in common enjoyment of the first schedule Kalam till an order of interim injunction was granted by the trial Court. The trial Court has also come to the conclusion that the first schedule property is a common property between Theertharappa Mudaliar and Nagappa Mudaliar. Of course, there is a preemptive clause in Exhibit A1 partition deed. In violation of the said preemptive clause, one of the co-sharer has alienated the first schedule property in favour of the first defendant. In such a case, without exercising his right of preemption, the plaintiffs cannot seek a prayer for declaration of title and permanent injunction over a property which is retained as a common property by both the brothers. Moreover, the plaintiffs have claimed the preemptive right that has been barred by limitation, in view of Article 97 of the Limitation Act. Moreover, the plaintiffs have not expressed their intention to purchase the first schedule property either under Exhibit A6 notice or in the plaint. 21. Moreover, the plaintiffs have claimed the preemptive right that has been barred by limitation, in view of Article 97 of the Limitation Act. Moreover, the plaintiffs have not expressed their intention to purchase the first schedule property either under Exhibit A6 notice or in the plaint. 21. Hence, viewed from any angle, the Courts below have erroneously came to the conclusion that the sale deed in favour of the first defendant is invalid due to preemptive clause found in Exhibit A1 partition deed. The breach of preemptive clause found in a contract between the parties will not invalidate the sale in favour of the purchaser, unless the aggrieved cosharers expressed his intention to purchase and initiate a suit for preemption in case of violation of preemptive right. Hence, the sale deed in favour of the first defendant cannot be said to be invalid. The defendants have purchased the common Kalam rights from the son of Theertharappa Mudaliar and hence, they are co-owners along with the plaintiffs. Since the plaintiffs and the defendants are co-owners with regard to the first schedule property, the plaintiffs are not entitled for declaration of title or permanent injunction. 22. In view of the above said discussions, all the substantial questions of law are answered as follows: (i) the plaint first schedule has been shown as a common Kalam under Exhibit A1 partition deed and hence, the plaintiffs are not entitled to a decree for declaration of title or permanent injunction as against the defendants. (ii) the First Appellate Court has not properly interpreted Exhibit A1 partition deed and arrived at a erroneous conclusion that the first schedule property has been exclusively allotted to the share of Nagappa Mudaliar ignoring the specific recital in Exhibit A1 partition deed. (iii) the suit factually is for enforcement of preemptive right of the plaintiffs. Without impleading the vendor under Exhibit A8 sale deed, the present suit is bad for non-joinder of necessary parties. 23. All the substantial questions of law are answered in favour of the appellants. The second appeal is allowed. The suit in O.S.No.525 of 1988 on the file of the District Munsif Court, Tenkasi is dismissed. No costs.