Manickammal and Others vs Malliga and Others

G. Rajasuria, J.—This second appeal is filed by some of the Defendants, inveighing the Judgment and decree dated 31.1.2007 passed by

the Principal District Judge, Vellore District, in A.S. No. 14 of 2006 confirming the judgment and decree dated 22.2.2006 passed by the

Subordinate Judge, Thiruppathur, in O.S. No. 68 of 2003, which was filed for declaration and permanent injunction.

The parties, for the sake of convenience are referred to here under according to their limitative status and ranking before the trial Court.

A recapitulation and re''sume'' of facts absolutely necessary and germane for the disposal of this second appeal would run thus:

(a) The first Respondent herein, as Plaintiff, filed the suit seeking the following reliefs:

(i) to declare the Plaintiff''s right, title and interest over the suit

(ii) to grant an order of permanent injunction against the Defendants, restraining them, their agents, men and servants or their representatives from

ever interfering with the Plaintiff''s peaceful possession and enjoyment of the suit properties in any manner what so ever;

(iii) to direct the Defendants to pay the costs of the suit to the Plaintiff.

(b) Separate written statements were filed by some of the Defendants, resisting the suit.

(c) Where upon issues were framed by the trial Court. The Plaintiff examined herself as P.W.1 along with P. Ws.2 to 6 and Exs.A1 to A18 was

marked. The 4thDefendant examined himself as D.W.1 along with one Prethiviraj as D.W.2 and Exs.B1 to 28 were marked.

(d) Ultimately, the trial Court decreed the suit, as against which, the appeal was filed for nothing but to be dismissed by the first appellate Court,

confirming the judgment and decree of the trial Court.

Being aggrieved by the Judgments and decrees of the Courts below, this second appeal is focused by some of the Defendants on various

grounds and also suggesting the following substantial questions of law:

1) Whether the judgment and decree of the Courts below are legally sustainable on the sole ground that the courts below are right in placing

reliance on the Exhibit A18?

2) Whether the judgment and decree of the Courts below are legally sustainable on the sole ground that the courts below are right in finding that

the 1st Respondent is entitled for entire extent of the suit property under Exhibit A1 by depriving the rights of the other sharers?

3) Whether the judgment and decree of the courts below are legally sustainable on the sole ground that the courts below are right in coming to the

conclusion that the 1st Respondent is entitled for the entire extent of the suit property on the wrong consideration of the alleged partition took place

in the year 1969?

4) Whether the judgment and decree of the courts below are legally sustainable on the sold ground that the courts below are right in finding of

estoppels by pleading by predecessor''s in title of the Appellants under Exhibit A18 document?

5) Whether the judgment and decree of the courts below are vitiated on the sole ground that the courts below are right in finding that Exhibit B1 to

B12 are void consideration u/s 52 of the Transfer of Property Act extinguishing the rights of the Appellants without properly accessing the facts

and position of law?

6) Whether the judgment and decree of the Courts below are vitiated on the sold ground that the courts below are right in finding that the 1st

Respondent is entitled for entire extent of suit property depriving the rights of the Appellants and their predecessor''s in title by placing reliance on

the suit document under Exhibit A18?

7) Whether the judgment and decree of the courts below are vitiated on the sole ground that the courts below are right in finding that the 1st

Respondent is

My learned predecessor framed the following substantial questions of law for consideration.

Whether the judgment and decree of the Courts below are legally sustainable on the sold ground that the courts below are right in placing

reliance on the Exhibit A18?

Whether the judgment and decree of the Courts below are legally sustainable on the sole ground that the courts below are right in their findings

regarding estoppels by pleading by predecessor''s in title of the Appellants under Exhibit A18 document?

I would like to re-frame the substantial question of law as under:

Whether the Courts below were justified in granting the relief''s of declaration and injunction in favor of the first Respondent/Plaintiff, who is

admittedly the purchaser of the suit property, which happened to be one of the items among the undivided joint family properties of the vendor of

the Plaintiff and his co-larcener and other sharers?

Both sides advanced arguments.

The warp and woof, the gist and kernel of the arguments as put forth and set forth on the side of the Appellants/Defendants would run thus:

(i) The courts below fell into error in not taking into account the fact that the first Respondent/Plaintiff purchased the suit property, which happened

to be one of the items in the undivided joint family properties of the vendor of the Plaintiff and his co-sharers.

(ii) If at all the Plaintiff was a genuine purchaser, she ought to have got verified about the actual title relating to the suit property. Despite evidence

having been placed before the Courts below to the effect that the suit property is one among the properties constituting joint family properties of

the vendor of the Plaintiff and his co-sharer, some of whom are Defendants herein, the Courts below decreed the original suit, which was one for

declaration and injunction, instead of dismissing it.

(iii) The partition suit filed by some of the co-sharers, no doubt, was dismissed for default and that it does not mean that the theory of estoppels or

lies pendent could be pressed into service in favor of the first Respondent/Plaintiff by the Courts below.

Accordingly, the learned Senior counsel for the Appellants/Defendants would pray for setting aside the Judgments and decrees of the Courts

below and for dismissing the original suit filed by the first Respondent/Plaintiff herein.

Per contra, in an attempt to torpedo and pulverize and to take the edge off the arguments of the learned Senior counsel for the

Appellants/Defendants, the learned Senior counsel for the first Respondent/Plaintiff would advance his arguments, which could tersely and briefly

be set out thus:

(i) The Plaintiff is a bona fide purchaser for value without notice of the co-larcener status of the suit property.

(ii) The vendor of the Plaintiff was in exclusive possession and enjoyment of the suit property and therefore the Plaintiff ventured to purchase it for

valid consideration and possession also was handed over by the Plaintiff''s vendor in favor of the Plaintiff and she has been in possession and

enjoyment of the suit property; whereupon only the Courts below granted the relief of declaration and injunction, warranting no interference in

second appeal.

(iii) The partition suit filed by some of the co-sharers of the Plaintiff''s vendor was dropped and in that, the Plaintiff herein was not added as one of

the Defendants and in such a case, she had no opportunity to proceed with the matter by getting herself transposed in the said suit.

(iv) The Plaintiff''s vendor''s co-sharers have relinquished their rights in favor of the other Defendants and various other persons and in such case,

the Appellants/Defendants herein are having no locus stand to prosecute the second appeal.

Accordingly the learned Senior counsel for the Plaintiff would pray for dismissing the second appeal.

At the out set itself I would like to fumigate my mind with the following well settled proposition of law that if a third party to a family comprises

of co-larcener, purchases an item of property, which forms part of the co-larcener property, then he has to necessarily file a suit for partition and

get his share carved out and at that time, he is also having the right to press into service the principle of equity, so to say, he could pray the Court

to allot the very property purchased by him in his favor and it is for the Court to apply the equity, taking into account the various circumstances

involved in the matter concerned. But in this case, the Plaintiff, who purchased the suit item, allegedly without knowing that it was forming part of

the joint family property, simply started enjoying it as though she purchased the property from an exclusive owner.

The evidence placed before the Courts below would unambiguously and unequivocally highlight the fact that there was no partition emerged

between the Plaintiff''s vendor and his co-sharers and there is also no finding to that effect by the Courts below. Briefly stated, the Courts below

proceeded on the footing that the Plaintiff''s vendor''s co-sharers, after filing the partition suit simply dropped it and as such, allegedly, the principle

of estoppels and lies pendent would be applicable as against them. I am of the considered view that such a view taken by the Courts below is

neither here nor there.

Once the Plaintiff is found to be a purchaser of a part of the joint family property, then the only remedy for her is to file a suit for partition, de

hors any steps whether being taken or not by the other co-sharers for partition. But in this case, the Plaintiff''s vendor''s co-sharers initiated a

partition suit, but they dropped it and that it does not mean that that would endure to the benefit of the Plaintiff, who is in need of relief in her favor.

Trite the proposition of law is that the purchaser of such joint family property like the Plaintiff can file a suit for partition. Order 9 Rule 9 of

CPC also would not come in the way of such partition suit being filed by the Plaintiff herein. Simply because the Plaintiff believed that the suit

property was the exclusive property of her vendor that would not clothe her with any additional right. Her belief, even bona fide, would not come

in the way of other co-sharers challenging the same.

As has been already highlighted by me supra, the Plaintiff, no doubt can press into service the principle of equity in a partition proceedings to

be initiated by her. It is for the Plaintiff to pray to the Court to apply equity and allot the very same property purchased from her vendor in her

favor and it would be for the Court concerned to decide it on merits based on the well established principles governing such sort of matters.

In this case, the Plaintiff filed the suit for declaration and injunction. The learned Senior counsel for the Plaintiff would vehemently argue that

whatever might be the right of the other co-sharers of the Plaintiff''s vendor, the possession of the Plaintiff, which followed the possession of her

vendor, should be protected, as otherwise, her right would be rendered odious.

I would like to recollect the following maxim:

''Jus supervenes victoria crescit successori''

An additional or enhanced right for the possessor accrues to the successor.

The above said maxim has to be applied with caution. If at all the possession of the Plaintiff''s vendor was perfectly legal and justified as against

the whole world, then only that maxim in full swing could be applied, as attempted to be applied by the learned Senior counsel for the Plaintiff.

But here, the factual position as placed before the lower Court is very clear. There was no partition among the Plaintiff''s vendor and his co-

sharers and the suit property forms part of the undivided joint family property and in such a case, simply because the Plaintiff''s vendor was in

possession and that he handed over the same, even as per the version of the Plaintiff, in favor of the Plaintiff, the Court cannot simply based on that

grant injunction, without subjecting the Plaintiff to certain terms and conditions, and now, the learned Senior counsel for the Plaintiff understanding

the appropriate legal position would submit that in the event of this Court coming to this conclusion, this Court might remand the matter to the

lower Court, so that, instead of the Plaintiff being driven to the extent of filing a separate suit for partition, she would take steps to get the plaint

amended, so as to incorporate the prayer for partition and other consequential relief''s.

The learned Senior counsel for the second Appellants/Defendants also would be having no objection for such a course being resorted to.

I am of the firm opinion that instead of driving the Plaintiff herein to file a separate suit for partition, this very same suit itself can be remitted

back to the lower Court, granting liberty to the Plaintiff to file necessary application to get incorporated the prayer for partition and other relief''s

and also the Plaintiff is at liberty to get imp leaded the other connected parties in this regard.

Accordingly, the substantial question of law is answered to the effect that the judgments and decrees of the Courts below are set aside and the

matter is remitted back to the trial Court for the afore said purpose.

The parties shall appear before the trial Court on 7.6.2011. The Defendants are at liberty to resist the suit before the trial Court as per law, by

taking all possible pleas.

In the result, the second appeal is disposed of accordingly. No costs. Consequently, connected Miscellaneous petitions are closed.