Selvamani vs Chellammal

S. Tamilvanan, J.—The Second Appeal has been preferred against the Judgment and Decree, dated 18.12.2006 passed in A.S. No.98 of 2004 on the file of the Additional District Judge/FTC-II, Salem, confirming the Final Decree, dated 25.7.2003 passed in I.A. No.1881 of 1990 in O.S. No. 857 of 1985 on the file of die Principal District Munsif, Salem.

The Appellants herein are the Legal Heirs of the First Defendant, deceased Veeramuthu. The Suit was filed by die Respondents 1 & 2 against the said Veeramuthu and other Defendants, seeking Judgment and Decree (a) to declare that the document, dated 1.3.1971 as void and inoperative as regards the relinquishment of the rights of the Plaintiffs in the Suit property (b) divide the Suit property'' into 30 shares by appointing Commissioner and allot 6 shares to the Plaintiffs (c) directing die Defendants to hand over possession of the share allotted to the Plaintiffs (d) Award mesne profits and also die costs.

As per the Order, dated 25.7.2003 made in I.A. No. 1881 of 1990 in O.S. No.857 of 1985, Final Decree was passed by die Court below, pursuant to the Preliminary Decree. The Final Decree reads that an Advocate-Commissioner was appointed to inspect the property and to effect partition and allotment of shares, as per the Preliminary Decree passed in the Suit.

It is seen that the Appellants herein had filed C.M.A. No.4011 of 2008 before this Court, challenging the order of remand passed in A.S. No.98 of 2004 on the file of the Additional District Judge/FTC-II. Salem, date 18.12.2006, whereby the matter had been remanded to the Principal District Munsif Court, Salem to appoint Advocate Commissioner in O.S. No. 857 of 1985 to effect partition After hearing both sides, this Court (T. Sudanthiram, J.), by Order, dated 6.8.2009, passed the Judgment in C.M.A No.4011 of 2008 and M.P. No. 1 of 2008, the operative portion of the Judgment reads as follows :

"4. Now both parties have agreed for fresh disposal of the Appeal by the learned Additional District Judge, Salem, this Civil Miscellaneous Appeal is allowed and the matter is remanded back for fresh disposal of A.S. No.98 of 2004. dated 18.12.2006 by the learned Additional District Judge FTC-2, Salem.

It is for the learned Judge to hear both parties and to consider about the validity of the document, Ex.B.1, dated 1.3.1971 and all other points raised by both parties.

The learned Judge has directed to complete the hearing and dispose of the Appeal within a period of eight weeks from the date of receipt of copy of the order and both parties were now directed to cooperate for disposal of the Appeal."

This Second Appeal is admitted, based on the following Substantial Questions of Law:

"1. Whether the First Appellate Court has ignored the effect of Ex.B1, which was executed by the First Plaintiff relinquishing her right ?

Whether the Decree in O.S. No. 857 of 1985 is hit by the Principles of Res judicata ?"

Substantial Question of Lam No.1:

The Suit in O.S. No. 857 of 1985 on the file of the District Munsif Court, Salem was filed by the Respondents 1 & 2 herein against late Veeramuthu and others. After the death of the said Veeramuthu, the first Defendant in the Suit, his Legal Representatives were brought on record. It is seen that the Trial Court, by Order dated 25.7.2003 made in I.A. No. 1881 of 1990 in O.S. No. 857 of 1985 passed Final Decree, whereby "A" portion shown in red colour in the Commissioner''s Report ?th share (6/30) was allotted to the Respondents 1 & 2/Plaintiffs with other consequential reliefs, such as rights to avail ?th share in the well water, pathway right to reach their property etc. and further, the Commissioner''s Report and Sketch, marked as Ex.C1 & Ex. C2 in I.A. No. 1338 of 2000 were ordered to be part and parcel of the Final Decree passed by the Trial Court. Aggrieved by which, Appeal was preferred by the Appellants therein. The First Appellate Court, by its Judgment in A.S. No. 98 of 2004, dated 30.10.2009, confirming the Final Decree passed in I.A. No. 1881 of 1990 in O.S. No.857 of 1985, dated 25.7.2003, by the Trial Court, dismissed the Appeal preferred by the Appellants herein. Aggrieved by which, this Second Appeal has been preferred.

The First Substantial Question of Law raised by the Appellants herein is whether the first Appellate Court has ignored the effect of Ex. B1. executed by the first Plaintiff, relinquishing her right of maintenance and also the right in the property. It is seen that Ex.B1, dated 1.3.1971 is a registered Deed of Relinquishment, executed by the first Respondent,First Plaintiff in favour of late Sundara Gounder. The document reads that she had executed the Relinquishment Deed on behalf of her minor daughter, the Second Plaintiff herein and also on her own behalf and for which, she received Rs. 1,100/-.

The Second Appellant, Velmurugan, who was examined as RW1 in I.A. No. 1881 of 1990 in O.S. No.857 of 1985 has admitted that the Advocate Commissioner appointed by the Trial Court, had inspected the Suit property on 27.2.2002 and the property was also measured by the Commissioner, with the help of Surveyor, pursuant to the Preliminary Decree passed. It is not in dispute that the Preliminary Decree passed by the Trial Court, reached its duality, hence, in the Final Decree application, neither the Appellants nor the Respondents herein would Ire entitled to challenge the Preliminary Decree. In the evidence, the Second Appellant, as RW1 in the said Application, deposed that the Respondents 1 & 2, who were the Plaintiffs in the Suit had filed a Suit in the year 1971 against his grand father and father and while the Suit was pending, the First Respondent had received a sum of Rs. 1,100/- and executed a Deed of Relinquishment of rights in the property for herself and also on behalf of the Second Respondent/D 1, her minor daughter and on that ground, argued for the Appellants that the Respondents 1 & 2 Plaintiffs are not entitled to seek ?th share in the Suit property. As claimed by them in the Suit.

It is well settled proposition of law that a Preliminary Decree cannot be challenged in a Final Decree proceeding and the Court passing the Final Decree has to act, as per the Preliminary Decree, if it is not stayed or set aside by any Appellate forum. In this case, it is an admitted fact that while passing the Final Decree, the Preliminary Decree was not stayed or set aside by any Appellate Court On the said circumstances, the Appellants cannot raise a plea, stating that the First Respondent, as guardian of the minor Second Respondent and on her own behalf had received Rs. 1,100/- and relinquished their right in favour of his grand father and father of PW1 and such a plea would be nothing but challenging the Preliminary Decree in the Final Decree proceeding which is not permissible under law.

It is an admitted fact that Sundara Gounder, s/o. Kandappa Gounder was none other than the father-in-law of the First Respondent, Chellammal and also the grandfather of the Second Respondent herein First Respondent''s husband, Palaniappa Gounder died nearly one year prior to the date of Ex.B1, Deed of Relinquishment. Admittedly, the document was not executed in favour of the Appellants herein or in favour of the first Defendant, late Veeramuthu, father of the Second Appellant, Velmurugan. The Second Appellant has raised a plea, as if he is the sole Legal Heir of late Sundara Gounder, forgetting the fact that he was the father-in-law of the first Respondent and also grand father of the Second Respondent herein. The averments of the document, Ex.B1 reads that the first Respondent had relinquished her right to claim maintenance from her father-in-law, Sundara Gounder. The first Respondent had no right to execute the document relinquishing the right of maintenance of the Second Respondent, who was her minor daughter, on the date of the document, as the same was not executed in the interest of the minor. Further, based on the document, Ex.B1, the Appellants cannot challenge the Preliminary Decree, whereby the Respondents 1 & 2 were allotted ? share in the property, as per Final Decree. The Preliminary Decree has reached its finality, which cannot be challenged in the Final Decree or in the Final Decree proceeding.

It is well settled that Preliminary Decree is an appealable Decree, as per Section 97 of the Code of Civil Procedure, which reads as under:

"97. Appeal from Final Decree where no Appeal from Preliminary Decree.- Where any party aggrieved by a Preliminary Decree passed after the commencement of tics Code does not Appeal from such Decree, he shall be precluded from disputing its correctness in any Appeal which may be preferred from the Final Decree "

It is well settled that if an Appeal is not filed against the Preliminary Decree and its correctness is not challenged, it becomes final and the party aggrieved thereby will not be permitted to challenge its correctness in an Appeal against Final Decree.

In Mool Chand and ors. v. Dy. Director Consolidation and ors., 1995 (5) SCC 631, the Hon''ble Supreme Court, relying on various decisions has categorically held that Preliminary Decree, which has reached its finality cannot be challenged in Final Decree proceeding. Even if there is Appeal against the Final Decree, no party shall be permitted to challenge the Preliminary Decree and its correctness in the Appeal preferred against the Final Decree.

In Ahmed Musaji Saleji and others v. Hashim Ebrahim Saleji and ors., AIR 1915 PC 116 the Privy Council held that failure to prefer Appeal against a Preliminary Decree would operate as a bar for raising any objection to it in an Appeal filed against Final Decree.

In Venkata Reddy v. Pothi Reddy, 1963 Supp. (2) SCR 616 : AIR 1963 SC 992, 993, it was held that the impact, of Section 97, is that the Preliminary Decree, so far as the matters covered by it are concerned, is regarded as embodying the final decision of the Court passing that Decree. The Hon''ble Supreme Court observed in the decision as follows:

"A Preliminary Decree passed, whether it is in a Mortgage Suit or a Partition Suit, is not a tentative Decree but must, in so far as the matters dealt with by it are concerned, be regarded as embodying the final decision of the Court passing that Decree..."

The said decision was relied upon in Gyarsi Bai and ors. v. Dhansukh Lal and ors. AIR 1965 SC 1055, wherein it was observed thus :

"It is fine that a Preliminary Decree is final in respect of the matters to be decided before it is made. It is indisputable that in a Mortgage Suit there will be two Decrees, namely Preliminary Decree and Final Decree, and that ordinarily the Preliminary Decree settles the rights of the parties and the Final Decree works out those rights "

In Shankar Balwant Lokhande (d) LRs. v. Chandrakant Shankar Lokhande & anr., 1995 JT (3) SC 186, while considering the provisions of Order 20, Rule 18 of the Code of Civil Procedure, also the period prescribed for the execution of Decree, under the Limitation Act, it was observed by the Supreme Court as under:

"Thus, it could be seen that where the Decree relates to any immovable property and the partition oi separation cannot be conveniently made without further inquiry, then the Court is required to pass a Preliminary Decree declaring the rights of several par lies interested in the property. The Court is also empowered to give such further directions as may be required in this behalf. A Preliminary Decree in a partition action, is a step in the Suit which continues until the Final Decree is passed. In a Suit, for Partition by a co-parcener or co-sharer, the Court should not give a Decree only for the Plaintiffs share, it should consider shares of all the heirs after making them parties and then to pass a Preliminary Decree. The words "Declaring the rights of the several parties interested in the property", in sub-rule (2) would indicate that shares of the parties other than the Plaintiff(s), have to be taken into account while passing a Preliminary Decree. Therefore, Preliminary Decree for parties is only a declaration of the lights of the parties and the shares they have in the joint family or coparcenary property, which is the subject-matter of the Suit The Final Decree should specify the division by metes and bounds and it needs to be engrossed on stamped paper."

It has been made clear that a distinction between a case in which an Appeal is filed against a Preliminary Decree and a case in which a Preliminary Decree is not appealed against and its correctness is not assailed, in the Appeal preferred against the Final Decree.

It is crystal clear that the Hon''ble Apex Court has ruled in various decisions that a Preliminary Decree is an appealable Decree, as per Section 97 of the Code of Civil Procedure. Aggrieved by any Preliminary Decree, Appeal could be preferred, however, Preliminary Decree cannot be challenged in the Final Decree proceeding.

In the instant case, it is seen that the Respondents 1 & 2 herein as Plaintiffs filed the Suit, seeking partition and separate possession of ?th share in the Suit Schedule property and Preliminary Decree was passed as prayed for, in favour of the Respondents 1 & 2/Plaintiffs and the said Preliminary Decree reached its finality. Pursuant to the Preliminary Decree, as per the Order passed by the Trial Court, Advocate-Commissioner was appointed to inspect the property" and accordingly, the Advocate-Commissioner inspected the property and measured the same with the help of Surveyor, so as to effect the Partition, which is not in dispute. At this stage. Appellants, who are some of the Defendants in the Suit have raised a plea that Ex.B1, dated 1.3.1971. alleged Deed of Relinquishment, executed by the first Respondent in favour of late Sundara Gounder was ignored by the First Appellate Court. The said Sundara Gounder is admittedly the grand father of the Second Respondent herein and father-in-law of the First Respondent and further, such a plea relating to the Preliminary Decree of allotting ?th share in the property cannot be raised, while challenging the Final Decree.

Based on the Relinquishment Deed, Ex.B1, Appellants herein challenged the Preliminary Decree, though the same has reached its finality and further, the Hon''ble Supreme Court in Punjab & Sind Bank and ors. v. Mohinder Pal Singh and ors, 2005 (12) SCC 747, has held as follows:

"Waiver of a right implies his knowledge of the existing right. A person cannot be said to have waived his right unless it is established that his conduct was such so as to enable the Com to arrive at a conclusion that he did so with knowledge that he had a right but despite the same acted in such a maimer which would imply that he has waived the same."

The First Respondent/First Plaintiff, as guardian of the minor Second Respondent was not empowered to execute a Relinquishment Deed in respect of the right of maintenance of the Second Respondent, who was a minor or relinquishment of her share in the property, on the date of executing the said document. Admittedly, the first Respondent was a widow, who had lost her husband, one year prior to the date of the said Relinquishment Deed, as per the averments therein.

The Hon''ble Apex Court in Punjab & Sind Bank & ors v. Mohinder Pal Singh & ors., 2005 (12) SCC 747, has made it clear that a person cannot be said to have waived his right, unless it is established that his conduct was such so as to enable the Court to arrive at a conclusion that he did so with knowledge that he had a right but despite the same acted in such a manner which would imply that he has waived the same.

In the instant case, being a widow, having a minor child, the Second Respondent herein, for getting a sum of Rs.1,100/-, there could be no need for her to execute the Relinquishment Deed in favour of her father-in-law by her and also on behalf of her minor daughter, the Second Respondent herein. Based on which, the Court cannot decide that the First Respondent had waived her lights as well as the rights of the Second Respondent in favour of the Appellants herein, since waiver of rights implies her knowledge of existing right.

It is a vital legal aspect that the defence raised by the Appellants is nothing, but challenging the Preliminary Decree, whereby the Respondents 1-A 2/Plaintiffs were awarded ?th share in the Suit Schedule property, since the Preliminary Decree of partition cannot be challenged in the Appeal against Final Decree or in the Final Decree proceeding. On the facts and circumstances, the Court is of the view that the Appellate Court has not ignored the aforesaid dictum of the Hon''ble Supreme Court in considering the Ex.B1, the alleged Deed of Relinquishment, said to have been executed by the first Respondent on 1.3.1971, long prior to the Preliminary Decree.

Hence, the first Substantial Question of Law is answered in favour of the Respondents 1 & 2 and against the Appellants, as the plea of the Appellants is unsustainable in law.

Substantial Question of Lam No. 2:

The Second Substantial Question of Law is that the Decree in O.S. No.857 of 1985 is hit by Principles of res judicata. It was contended by the learned Counsel appearing for the Appellants that earlier Suit was filed by the First Respondent herein for herself and also his guardian of the minor. Second Respondent herein and in view of the same. Deed of Relinquishment, dated 1.3.1971 was executed. It is seen that the Appellants have not produced any supporting document to show that there was any earlier Decree between the same parties, so as to decide that the same would Put on the Principle of res judicata. Even in the grounds, there is no such details and no supporting document was marked by the Appellants herein and there is no reason as to why the plea was not taken before the Trial Court before passing the Preliminary Decree. Hence, such an unsustainable plea cannot be raised by the Appellants, while challenging the Final Decree.

In Ex.B1, there is a reference that the First Respondent filed O.P. No. 1/1971 before the District Munsif Court, Salem, seeking maintenance and therefore, there was a need for settlement between the first Respondent, her father-in-law late Sundara Gounder, whereby she received Rs. 1,100/- - and executed Ex.B1. However, to raise a plea of res judicata, there must be an earlier Judgment and Decree or adjudication by a Competent Court between the same parties, in respect of the matter directly and substantially in issue. In this regard, referring. Section 11 of the Code of Civil Procedure is relevant, which reads thus:

"11. Res judicata.- No Court shall try any Suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former Suit between the same parties or between parties under whom they or any of them claim litigating under the same title, in a Court competent to try such subsequent Suit or the Suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."

In the instant case, there is no plea raised by the Appellants that there was any Judgment or Decree passed by any Competent Court, having jurisdiction and the matter was directly and substantially in issue and that was decided earlier. There is no iota of evidence available on record to show that there was any earlier Judgment or Decree between the same parties, to consider that the same would operate as res judicata against the Respondents 1 & 2/Plaintiffs and further, no such plea was raised by the Appellants before the Trial Court or the First Appellate Court. In the aforesaid circumstances, Appellants are not entitled to raise such Substantial Question of Law in the Second Appeal on the facts and circumstances, the alleged second question raised by the Appellants could not be construed as a Substantial Question of Law, as contemplated under Section 100 of the Code of Civil Procedure and accordingly, the same is answered in favour of the Respondents 1 & 2/Plaintiffs and against the Appellants herein.

In view of the answers given for the alleged Substantial Questions of Law against the Appellants herein, the Court is of the view that the Second Appeal is liable to be dismissed.

In the result, this Second Appeal is dismissed Consequently, connected Miscellaneous Petition is also dismissed. However, there is no order as to costs.