Meyyappa Sundaram vs Chidambaram

A. Selvam, J.—Challenge in this Appeal Suit is to the Judgment and decree dated 28.06.1990 passed in Original Suit No. 136 of 1988 by the Sub Court, Pudukkottai.

The appellant herein as plaintiff has instituted Original Suit No. 136 of 1988 on the file of the trial Court for the relief of partition of his half share, wherein the present respondents have been shown as defendants.

The material averments made in the plaint are that the suit property is the absolute property of one Meyyappa Chettiar and he passed away intestate leaving behind him his two sons namely Palaniappa Chettiar and Kadappa Chettiar. The said Palaniappa Chettiar has passed away leaving behind him his only son by name Meyyappan and he passed away leaving behind him his two sons namely Palaniappa Chettiar and Nagappa Chettiar. The said Palaniappa Chettiar has died issueless and the said Nagappa Chettiar has passed away leaving behind him, the present defendants as his legal heirs. Likewise, the said Kadappa Chettiar has passed away leaving behind him his only son by name Palaniappa Chettiar and he has passed away leaving behind him his only son by name Kadappan and the said Kadappan has passed away leaving behind him, the present plaintiff as his legal heir. Since the suit property is the joint family property of both the plaintiff and defendants, the plaintiff is having half share whereas the defendants are having remaining half share. The defendants are not amenable for having amicable partition. Under the said circumstances, the present suit has been instituted for the relief sought for in the plaint.

In the written statement filed on the side of the defendants, it is averred that the suit property is originally belonged to one Meyyappa Chettiar. But it is false to aver in the plaint that with regard to suit property no partition has taken place. Already a partition has taken place, wherein three shares have been allotted to the share of Palaniappa Chettiar and after his demise his son by name Meyyappa Chettiar has succeeded his estate and the said Meyyappa Chettiar has passed away leaving behind him his two sons namely Palaniappa Chettiar and Nagappa Chettiar and the said Palaniappa Chettiar has passed away issueless and Nagappa Chettiar has passed away leaving behind him the defendants. The paternal grandfather of the defendants has executed a mortgage deed dated 30.03.1925 in favour of one Muthiah Chettiar and subsequently the mortgagee has instituted Original Suit No. 355 of 1935 on the file of Samasthana Chief Court, Pudukkottai, wherein the grandfather of the plaintiff has been shown as one of the defendants. Since with regard to suit property already a partition has taken place, the plaintiff is precluded to claim partition in respect of the same and the present suit is bad for non-joinder of necessary parties. There is no merit in the suit and the same deserves to be dismissed.

On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has dismissed the suit. Against the Judgment and decree passed by the trial Court, the present appeal suit has been preferred at the instance of the plaintiff as appellant.

Before contemplating the rival submissions made on either side, the Court has to narrate the following admitted facts. It is an admitted fact that the suit property is originally belonged to one Meyyappa Chettiar. It is also equally an admitted fact that the genealogy pleaded in the plaint is correct.

The present suit has been instituted for the relief of partition of half share of the plaintiff in the suit property. The main defence putforth on the side of the defendants is that with regard to suit property already a partition has taken place amongst the two sons of Meyyappa Chettiar namely Palaniappa Chettiar and Kadappa Chettiar, wherein three shares have been allotted to the share of Palaniappa Chettiar and subsequently his son Meyyappa Chettiar has mortgaged the same in favour of Muthiah Chettiar and since already a partition has taken place amongst the sharers, the present suit for the relief of partition is not legally maintainable.

The trial Court has dismissed the suit on the ground that already a partition has taken place and further the trial Court has observed that as per Ex. B.1, the plaintiff is having only 2/5th share in the suit property.

The learned counsel appearing for the appellant/plaintiff has sparingly contended that the admitted case of both parties is that the suit property is originally belonged to one Meyyappa Chettiar and after his demise no partition by metes and bounds has taken place amongst his sons and even in the mortgage deed dated 30.03.1925 (Ex. B.1) in the description of property it has been simply stated as three shares out of five shares and in Ex. B.1 neither the plaintiff nor his predecessor is a party and simply because in Original Suit No. 355 of 1935, the father of the plaintiff has been impleaded as one of the defendants, the Court cannot automatically come to a conclusion that already a partition has taken place amongst two sons of senior Meyyappa Chettiar and further no document has been filed on the side of the defendants with regard to alleged partition and the trial Court without considering the vital factual aspects has erroneously dismissed the suit and therefore the Judgment and decree passed by the trial Court are liable to be set aside.

The learned counsel appearing for the respondents/defendants has repeatedly contended that in the mortgage deed dated 30.03.1925, it has been clearly mentioned as three shares out of five shares and subsequently Original Suit No. 355 of 1935 has been instituted wherein the father of the plaintiff has been shown as one of the defendants and if really no partition has taken place, the father of the plaintiff would not have remained silent without raising any objection and further on 21.10.1958 an agreement has come into existence, wherein the father of the plaintiff has put his signature as a witness and the trial Court after considering the overall evidence adduced on the side of the respondents/defendants has rightly found that already a partition has taken place and therefore the Judgment and decree passed by the trial Court do not warrant interference.

As stated earlier, the suit property is the absolute property of one Meyyappa Chettiar and he passed away leaving behind him his two sons namely Palaniappa Chettiar and Kadappa Chettiar. The plaintiff belongs to branch of Kadappa Chettiar and the defendants belong to branch of Palaniappa Chettiar.

The entire plaint proceeds on the basis that no division by metes and bounds has taken place amongst sharers with regard to suit property and therefore the plaintiff is having half share. The only defence putforth on the side of the respondents/defendants is that already a partition has taken place amongst the sharers wherein the ancestor of the defendants has been allotted three shares out of five shares.

The entire defence putforth on the side of the respondents/defendants is based upon Exs. B.1, B.2 and B.12. Ex. B.1 is a mortgage deed dated 30.03.1925 alleged to have been executed by Meyyappa Chettiar, son of Palaniappa Chettiar in favour of one Muthiah Chettiar, wherein the father of the plaintiff or his grandfather by name Palaniappan has not been shown as co-mortgager. But unfortunately the mortgagee has instituted Original Suit No. 355 of 1935 on the file of the Chief Court, Pudukkottai Samasthanam wherein the father of the plaintiff by name Kadappan has been shown as one of the defendants. Since in Ex. B.1, the said Kadappan or his father Palaniappan has not been shown as a co-mortgager in Original Suit No. 355 of 1935, the father of the plaintiff has been unnecessarily impleaded as one of the defendants and simply because in Original Suit No. 355 of 1935, the father of the plaintiff has been impleaded as one of the defendants, the Court cannot automatically come to a conclusion that already a partition has taken place amongst sharers. At this juncture, it is pertinent to note that no partition deed has been marked on the side of the respondents/defendants.

On the side of the respondents/defendants, reliance has also been placed on the basis of Ex. B.12. Ex. B.12 is nothing, but an agreement entered into in between the heirs of Nagappa Chettiar wherein the father of the plaintiff has put his signature. Simply because the father of the plaintiff has put his signature as a witness in Ex. B.12, the Court cannot come to a conclusion that already a partition has taken place amongst the sharers by metes and bounds.

It is a settled principle of law that for making a complete partition of properties there must be three stages. The first stage is that there must be an unequivocal demand of partition. The second stage is actual division among sharers and third stage is taking possession of shares by each sharer.

In the instant case, even in Ex. B.1, it has been clearly mentioned as undivided share. If really such a partition has taken place as pleaded on the side of the respondents/defendants prior to Ex. B.1, definitely in Ex. B.1 definite share of the mortgagor would have been mentioned with proper identification. Therefore viewing from any angle, on the basis of Exs. B.1 to B.3 and B.12, it is highly impossible on the part of the Court to come to a conclusion that already a partition has taken place with regard to suit property among the sharers.

The trial Court without considering the lack of partition deed and also without considering the recitals mentioned in Ex. B.1 has erroneously non-suited the plaintiff by way of holding that already a partition has taken place among the sharers and in view of the discussion made earlier, this Court has found considerable force in the contention putforth on the side of the appellant/plaintiff whereas the contention putforth on the side of the respondents/defendants is sans merit and altogether the present appeal suit is liable to be allowed.

In fine, this appeal suit is allowed without costs. The Judgment and decree passed in Original Suit No. 136 of 1988 by the Sub Court, Pudukkottai are set aside and the appellant/plaintiff is entitled to get a preliminary decree of partition as prayed for and to that extent Original Suit No. 136 of 1988 is decreed without costs.