S. Palaniappan vs P.L. Sethuraman Chettiar and others

M. Chockalingam, J.—This appeal has arisen from the order of the learned single Judge dated 07.10.2004 in O.A.No.609 of 2004 in

C.S.No.924 Of 2003, revoking the leave originally granted by the Court in C.S.No.924 of 2003. Heard the learned counsel on either side. From

the materials, it could be seen that it was a suit for partition brought forth by the plaintiff/appellant in respect of ''A'' to ''K'' Schedule properties as

shown in the plaint. Out of those properties, ''A'' Schedule property, an immovable property, is situate in the City of Madras. The properties

mentioned in Schedule C, D, G, H and J are at Dindigul, Schedule B is at Valayapatti and Schedule E and I are at Pudukottai, which are outside

Madras. F Schedule property is shown as gold jewellery and K Schedule property is the finance business.

The case of the plaintiff was that the properties are the joint family properties consisting of himself and his father-1st defendant and his brothers,

who are shown as 2nd defendant and also the sisters-defendants 4 to 6 and defendants 3 and 7 to 10 are the family members and defendants 11

to 17 are the mortgagors. It was specifically averred that ''A'' Schedule property is situate in the City of Madras and since it belongs to the joint

family, it is also sought to be partitioned. Hence, this Court has got jurisdiction to try the suit and sought for leave to try the suit, before this Court.

Considering the averments, this Court originally granted leave. While the matter stood thus, defendants 1 to 3,7 and 8 filed the instant

application for revocation of the leave originally granted. The contention putforth by them was that originally, there was a partition, in which the

divisions have taken place and in so far as the ''A'' Schedule property is concerned, it belongs to 4th defendant, one of the daughters of the 1st

defendant. She got married in 1967 and she purchased the said property in 1970 and that it is her exclusive property and in order to bring forth

under the jurisdiction of this Court, it has been intentionally and wantonly added as if that property belonged to the joint family and it is also

subjected to division. Thus, the suit originally will not lie before the Court. Under such circumstances, the leave originally granted has got to be

revoked.

The learned single Judge, after hearing both sides, took the view that the leave originally granted has got to be revoked and accordingly, made

the order. Challenging the same, the present appeal has been putforth by the plaintiff.

Advancing the arguments on behalf of the appellant, the learned senior counsel would submit that in the instant case, even as per the averments

in the plaint made by the plaintiff, ''A'' Schedule property, an immovable one, is situate in the City of Madras, which, according to the plaintiff, is

the joint family property and the partition, which was originally done on 14.12.2000 did not cover all the properties of the family and in particular,

''A'' Schedule property and thus, the said property belonged to the joint family, which has also got to be divided. It is true that all other properties,

including jewellery and finance business that is carried on by the family, are all situate at Dindigul and Valayapatty and it is also true that some of

the defendants are also residing outside Madras and unless and until proper and sufficient cause is shown to the Court, the original leave should not

be revoked. In the instant case, the learned single Judge, while revoking the leave originally granted, has taken the averments in the written

statement for revoking the leave and he has also given a specific finding as if the immovable property situate in ''A'' Schedule belonging to the 4th

defendant, which is also uncalled for and apart from that, so long the plaintiff was able to show that ''A'' Schedule property is situate in Madras and

also came with an averment that the property i.e. ''A'' Schedule belonging to the joint family, it is suffice to sustain the leave originally granted.

Learned counsel in support of his contention relied on a decision reported in M/s. Scientific Compounds & Processes Private Ltd., ..vs.. M/s.

national Soapnut Works, Bengalore 1998-1-1-L.W.640 and submitted that the proper course would have been, after the defendants had filed the

written statement, a preliminary issue could be taken as to the jurisdiction and hence, the order passed by the learned single Judge has got to be set

aside.

The Court heard the learned counsel for the respondents, who, in his sincere attempt to sustain the order of the learned single Judge, would

submit that in the instant case, all the parties even the plaintiff, except few, are residing either at Dindigul or at Pudukottai District and the 1st

defendant is also aged more than 80 years. Added further that all the properties are shown to be outside Madras and that ''A'' Schedule property

is not the subject matter of partition and that even the partition deed dated 14.12.2000 was also registered at Dindigul and the property will not be

shown for partition because it did not belong to the joint family. It was the exclusive property of the 4th defendant and thus, as pointed out in the

written statement, it was added intentionally and even the witnesses to be examined before the Court and Panchayatdars too, are the residents of

outside Madras and under such circumstances, the convenience of the parties has got to be taken into consideration and these were all putforth

before the learned single Judge and on this score, the leave originally granted was revoked. Thus, the order of the learned single Judge has got to

be sustained.

The court has paid anxious consideration on the submissions made by the learned counsel on either side.

In the instant case, it is not in controversy that there are 17 defendants. Out of whom, except 11 to 17, who are shown as mortgagors, all the

parties are family members. The properties are shown as Schedule ''A'' to ''K, out of which ''A'' Schedule property is admittedly situate in the City

of Madras. The only contention put forward by the learned senior counsel for the appellant is that ''A'' Schedule property is the joint family

property, which is also situate in the City of Madras and under such circumstances, this Court has got jurisdiction to try the suit and since it is the

partition suit, leave originally granted has got to be continued and not to be revoked. It is brought to the notice of the Court that even the plaintiff,

who has filed the suit, is actually living at Dindigul and the 1st defendant, who is the father of the plaintiff is also aged about 85 and is also the

resident in the native place and other witnesses to the partition deed to be examined are the residents of Dindigul. It is further to be pointed out that

the partition deed was also registered at Dindigul and even the plaintiff is the resident of Dindigul and all the financial business are being conducted

there. It was brought forth by the learned counsel for the respondents that all witnesses and parties have to come over to the City of Madras and

the witnesses to be examined have to be brought over to Madras and thus, the convenience has to be taken into consideration.

It is true that one of the immovable properties shown as ''A'' Schedule is in the City of Madras, but all other properties are situate outside

Madras. All the parties, except few, are the residents of outside. Even the father of the plaintiff, who is an octogenarian, is far away from the City

of Madras. Under such circumstances, merely because one property is situated in Madras, the Court has to look into not only the convenience of

the parties but also the undergoing ordeal of the trial. It is found that one of the properties, namely, ''A'' Schedule property is situate in the City of

Madras and it is contended by the appellant that it is the joint family property; but, on the contrary, it is contended by the respondents that it is the

property exclusively belonged to the 4th defendant. As contended by the learned senior counsel, the observation made by the learned single Judge

looks as if there was a partition of the year 2000, which would cover all the family properties and the comments made by the learned single Judge

about the alleged partition and also the contention that ''A'' Schedule property belonged to the 4th defendant, are unwarranted. But at the same

time, taking into consideration the convenience of the parties, in particular, all, except few, even including the plaintiff, are also the residents, living

away the jurisdiction of this Court and the 1st defendant is aged about 85 and all the properties are outside the Court, we are of the considered

opinion that it is fit and proper that the revocation of the leave made by the learned single Judge has got to be sustained.

Accordingly, the original appeal fails and is dismissed. The parties shall bear their own costs. Registry is directed to return the plaint for

presentation before the Court of competent jurisdiction either at Dindigul or at Pudukkottai.