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2025 DIGILAW 2738 (MAD)

S. Vasudevan v. S. Sundaram

2025-07-02

T.V.THAMILSELVI

body2025
JUDGMENT : T.V. Thamilselvi, J. The above Second Appeal arises against the Judgment and Decree dated 31.08.2005 in A.S.No.139 of 2001 on the file of the learned I Additional District Judge, Coimbatore against the Judgment and Decree dated 29.06.2001 in I.A.No.893 of 1992 in O.S.No.262 of 1988 on the file of the learned Subordinate Judge, Tiruppur. 2.Challenging the Final Decree passed in A.S.No.139 of 2001 on the file of the learned I Additional District Judge, Coimbatore, the 2 defendant preferred this Second Appeal. 3.The parties are referred to in the same rank and array as before the Trial Court. 4.The 2 nd respondent herein is the plaintiff. He filed a suit in O.S.No.262 of 1988 on the file of the learned Subordinate Judge, Tiruppur for partition against the four defendants who are his father, his two brothers and his mother. The 3 defendant was unmarried living with his father at the time of filing of the suit. 5.Before the Trial Court, the 1 st defendant contested the suit through his Counsel and the defendants 2 to 4 also contested the suit by engaging a separate Counsel. 6.The plaintiff claimed 1/5 share in the entire suit properties, namely, Schedules A, B and C, as descried in the Plaint schedule. 7.The case of the plaintiff is that the entire suit properties are his joint family properties. His father/1 defendant is the Kartha of the family. They had a joint family business and also allotted with the ancestral house to the family. The front portion was leased out for tenants. There is a rental income from the ancestral building and with the help of joint family income, other properties were purchased by the father in the name of his sons. One of his sons Devarajan died as a bachelor. Therefore, as his legal heir, the 4 defendant is entitled to his share. 8.Considering the submissions made on either side, the Trial Court passed Preliminary Decree by allotting 1/5 share in the entire suit properties to the plaintiff. The plaintiff filed an Interlocutory Application in I.A.No.893 of 1992 in O.S.No.262 of 1988 on the file of the learned Subordinate Judge, Tiruppur to pass a Final Decree. The Advocate Commissioner was appointed. While so, the 1 defendant/father died. As his legal heirs, his daughters were impleaded. The Advocate Commissioner visited the suit properties and submitted his Report. The plaintiff filed an Interlocutory Application in I.A.No.893 of 1992 in O.S.No.262 of 1988 on the file of the learned Subordinate Judge, Tiruppur to pass a Final Decree. The Advocate Commissioner was appointed. While so, the 1 defendant/father died. As his legal heirs, his daughters were impleaded. The Advocate Commissioner visited the suit properties and submitted his Report. Objections have been filed by the plaintiff and the 3 defendant. Considering the suggestions made by the Advocate Commissioner, the Trial Court passed Final Decree allotting the entire “A” schedule of the property in favour of the plaintiff. Aggrieved that, the 3 defendant filed an appeal in A.S.No.139 of 2001 on the file of the learned I Additional District Judge, Coimbatore. The First Appellate Judge has framed eight points for consideration. In the meanwhile, he also filed I.A.No.33 of 2002 seeking permission to pay necessary Court Fee for allotment of his share. The plaintiff contested the said Interlocutory Application. The First Appellate Court dismissed the said application and ordered to remit the application filed for Final Decree for fresh disposal. 9.As against the same, the plaintiff preferred C.M.A.No.2407 of 2003 before this Court, wherein the order of remittance was set aside and the appeal was directed to be disposed of. The learned First Appellate Judge, on considering the separate memo of instructions in respect of allotting the shares and also considering the Commissioner's Report and Plan received as Ex.C.1 to Ex.C.11 with the suggestions given by the Advocate Commissioner, finally held that the appellant/3 respondent has not made any specific claim. The 3 respondent has not filed any Written Statement separately nor he made any specific claim that he enjoyed the entire “A” schedule properties. Only at the time of passing of Final Decree alone, he raised such objections without any reliable evidence. Therefore, the claim of the 3 respondent for the exclusive allotment of “A” Schedule property to him was negatived. But, considering the allotment of “A” Schedule property exclusively in favour of the plaintiff and the memo of instructions given by the defendants 2, 4 and 6 through which they expressed their willingness to allot their 7/30 share and 1/30 share in the “A” Schedule property to be included with the plaintiff's share, thereby the plaintiff is entitled to 22/30 share and the 3 defendant is entitled to the remaining 7/30 share. On considering the Value Certificate of the “A” schedule property, the Trial Court has calculated the values of “B” and “C” schedule properties by considering the Suggestion No.1 contained in Ex.C.8 and Ex.C.9. Though the parties have not questioned the correctness of the measurements and the value of the property given by the Advocate Commissioner the value of A, B and C schedule properties were calculated on the basis of the extent available in each schedule. The entire properties were valued and on considering the Plan No.4, the First Appellate Court allotted a brown colour shaded portion in “B” and “C” schedule properties as shown in Ex.C.9. Plan No.5 towards his 7/30 share in the suit property. Since the Court arrived at a conclusion to allot the entire “A” schedule property to the plaintiff, the mode of Suggestion No.1 contained in Ex.C.8 and Ex.C.9, the memo calculation filed by the respondent was taken into consideration. 10.Accordingly, the entire A, B and C schedules are valued and finally, the plaintiff was directed to deposit a lump sum of Rs.5 lakhs as ovelty and other sharers are entitled to receive the same in accordance with their shares. Accordingly, the appeal was dismissed by confirming the Judgment and Decree dated 29.06.2001 passed in Final Decree application in I.A.No.893 of 1992 in O.S.No.262 of 1988 on the file of the learned Subordinate Judge, Tiruppur, however with the modification of the Judgment and Decree made in the Lower Court and I.A.No.893 of 1992 in O.S.No.262 of 1988 on the file of the learned Subordinate Judge,Tiruppur, is allowed by allotting the entire “A” schedule property to the plaintiff as per Ex.C.8 - Plan No.4, however on deposit of Rs. 5 lakhs by the plaintiff/1 respondent as owelty within two months from this date and on deposit of the same, the other sharers are entitled to receive the same in proportion to their shares in the suit properties and by allotting the entire brown shaded portions “B” and “C” schedule properties shown in Ex.C.9 - Plan No.5 to the appellant/third defnednat on his payment of necessary Court Fees under Section 37(3) of the Tamil Nadu Court Fees and Suits Valuation Act. Having regard to the relationship between the parties there is no order as to costs.Ex.C.8 and Ex.C.9 - Plans are to form part of the Final Decree. Having regard to the relationship between the parties there is no order as to costs.Ex.C.8 and Ex.C.9 - Plans are to form part of the Final Decree. 11.Challenging the said findings, the 2 nd defendant preferred this Second Appeal. 12.At the time of admission, this Court had framed the following Substantial Questions of Law: “(1) Whether in law the lower appellant was entitled to a14/30 share and coming to a perverse conclusion allotting him a 7/30 share thus inviting interference under Section 100 CPC vide AIR 2001 SC 1273 ? (2)Whether in law the Lower Appellate Court was not wrong in giving the first respondent a much larger share than the appellant on misreading the Commissioner's report and Plan?” 13.The learned counsel appearing for the appellant/2 nd defendant would argue that the Lower Appellate Court failed to see that the mother of the appellant Valliammal had filed a Memo dated 23.09.1998 expressing her wiliness to allot her 7/30 share in “B” and “C” schedule properties to the appellant and the appellant had to be allotted 14/30 share. The Lower Appellate Court erred in allotting 7.73 cents with building to the appellant towards his 14/30 share while granting 19.43 cents with building to the 1 respondent. He would contend that the First Appellate Court failed to note that the appellant was entitled to double the share of the 1 respondent and omitted to see that as per the valuation of the Commissioner, the appellant's share was only worth RS.12,96,088/- while that of the 1 respondent's share Rs.18,26,140/-. He would submit that the Lower Appellate Court ought to have allotted the 6 cents of land to the North of the property allotted to him from out of that allotted to the 1 respondent and also make up for the shortfall by directing the 1 respondent to pay owelty. 14.The learned counsel for the 1 st respondent/3 rd defendant raised objections stating that during the final decree proceedings, the appellant/2 defendant has not raised any objection. Furthermore, as per the final decree proceedings, the amount has also been deposited and a portion of the amount was also withdrawn by the other sharers. 14.The learned counsel for the 1 st respondent/3 rd defendant raised objections stating that during the final decree proceedings, the appellant/2 defendant has not raised any objection. Furthermore, as per the final decree proceedings, the amount has also been deposited and a portion of the amount was also withdrawn by the other sharers. Further, he contended that the question along with other sharers submitted memo of instructions by giving consent to give their shares 7/30 to be included the plaintiff's share and considering the said memo of instructions, final decree was passed by allowing the entire “A” schedule properties to the plaintiff and the same was also confirmed by the First Appellate Court. He is not challenging the final decree proceedings by filing any appeal. Therefore, the appeal has to be dismissed as no merit. 15.The learned counsel for the appellant argues that when the share allotted to the appellant without considering the memo of instructions given by his mother, thereby, he is entitled for 14/30 share and the valuation of the property calculated by the Courts below is also inequal and therefore, he prayed to set aside the findings. 16.Admittedly, the plaintiff contended before the Trial Court that the entire properties are joint family properties and on considering both submissions, the Trial Court has allotted 1/5 share to the plaintiff in all A, B and C schedules. Accordingly, each entitled to 7/30 share. The plaintiff was allotted 1/5 share. During the pendency of final decree proceedings, their father died and shares have got enlarged. Accordingly, the widow and three sons are entitled to 7/30 shares each and daughters are entitled to each 1/30 shares. Thereafter, in the final decree proceedings, the mother, one of the sons and one of the daughters, namely, the defendants 2, 4 and 6 jointly given memo of instructions to the Advocate Commissioner, expressing their willingness to include their 15/30 shares in “A” schedule along with plaintiff's 7/30 share and prayed to allot more share in “B” and “C” schedules. So also, the 3 defendant filed a separate memo and sought for allotment of entire “A” schedule, which was negatived. 17.Considering the report of the Advocate Commissioner Ex.C.1 to Ex.C.11 as well as the Valuation Certificate of the A, B and C schedule of properties, three modes of divisions of the properties were suggested by the Advocate Commissioner. So also, the 3 defendant filed a separate memo and sought for allotment of entire “A” schedule, which was negatived. 17.Considering the report of the Advocate Commissioner Ex.C.1 to Ex.C.11 as well as the Valuation Certificate of the A, B and C schedule of properties, three modes of divisions of the properties were suggested by the Advocate Commissioner. Finally, the Suggestion No.1 was taken into consideration by the Trial Court. Accordingly, the final decree was passed and the same was confirmed in the appeal with slight modifications. 18.Therefore, the final decree as well as the finding of the First Appellate Court clearly reveals that the appellant/2 defendant already filed a memo of instructions to allot his 7/30 share with the plaintiffs share in “A” schedule property along with his mother and one of the sisters. Therefore, now he has no locus standi to challenge the findings of the First Appellate Court in A.S.No.139 of 2001. As rightly pointed out by the learned counsel for the 1 respondent, the appellant has not raised any objection during the final decree proceedings nor he preferred any appeal challenging the final decree proceedings. Therefore, the objections raised by the appellant/2 defendant is unsustainable. The shares allotted by both the Courts below is a well reasoned one and needs no further discussion. Both the Courts below have elaborately discussed with regard to the allotment of shares by considering the Advocate Commissioner's report and Plan which needs no interference. 19.In these circumstances, I find no ground much less any substantial question of law to interfere with the findings of the Courts below. As he already submitted a memo before the final decree proceedings, thereafter, he has no locus standi to challenge the findings of the Courts below. Accordingly, the Substantial Questions of Law 1 and 2 are answered. The appellant/2 defendant is permitted to withdraw the amount deposited before the Trial Court by the plaintiff with accrued interest which comes around Rs.4 lakhs subject to the verification with the proceedings of the Trial Court. Accordingly, this Second Appeal is dismissed as no merit. There shall be no order as to costs.