Subbayan vs Saraswathi and Others

S. Sardar Zackria Hussain, J.—The second defendant, who succeeded before the trial Court in O.S. No. 98 of 1990 on the file of the

Court of Additional Sub-Judge, Cuddalore, and who lost his case before the first Appellate Court in A.S. No. 243 of 1991 on the file of the Court

of Principal District Judge, Cuddalore, is the appellant in this second appeal.

The parties are referred to as per their rankings in the suit.

The respondents 1 to 4 as plaintiffs filed the suit for partition and separate possession stating that the suit property originally belonged to joint

family consisting of three brothers, viz., Pallandu, Parasuraman and Chinnaraju, who is the tenth defendant and it was purchased by their mother

Amirthammal from one Velayutha Nattar as per sale deed dated 02.7.1924. The suit property was a vacant site and subsequent to the purchase,

the said Amirthammal put up a hut and was residing with her family. On the death of their parents and after their marriage, the three brothers were

in enjoyment of the suit property each by putting house separately for them without any division. The eastern property of the suit property, which

also belonged to them, was brought in Court auction sale in execution of decree obtained against the three brothers in O.S. No. 124 of 1956 and

in the Court auction sale held on 04.12.1970, one Arumuga Padayachi purchased the said eastern property and he took delivery of the same

through Court and thereafter, he was in possession and enjoyment of the said property. Subsequently, he sold the same to the eleventh defendant

Alamelu Ammal, wife of the tenth defendant, and after purchase, the tenth defendant, who is employed in Court, put up a house and is residing

there. Parasuraman died leaving behind his wife, the first plaintiff and children, the plaintiffs 2 to 4 and twelfth defendant. The defendants 1 to 9 are

the legal heirs of Pallandu. The second defendant is the manager of the family of Pallandu branch and he filed O.S. No. 827 of 1984 on the file of

the Court of District Munsif, Cuddalore, claiming pathway right against the defendants 10 and 11 that they have got a right of pathway over the

southern portion of the suit property. The second defendant also claimed 2/3rd share in the suit property stating that Parasuraman''s 1/3rd share

has been sold in Court auction in execution of decree in O.S. No. 465 of 1960 on the file of the Court of District Munsif, Cuddalore, in which one

Arumuga Padayachi purchased the share of Parasuraman and in turn, the second defendant purchased the share of Parasuraman from Court

auction purchaser under a sale deed dated 10.02.1984. There was no partition between the three brothers in 1960. It is admitted that the

undivided 1/3rd share of Parasuraman was sold in Court auction on 14.11.1963. But, the Court auction purchaser did not take possession of the

property and has also not obtained delivery through Court and as such, the right of the Court auction purchaser has become extinguished, since he

has not taken delivery of the property within the prescribed period. Parasuraman, who was the predecessor of the plaintiffs, and his two brothers

continued to be in possession of the suit property without any partition and after purchase, the second defendant constructed a house in the suit

property and the second defendant has exceeded his 1/3rd share while constructing the said house. The plaintiffs, on enquiry of the tenth

defendant, came to know about the previous litigation filed by the first defendant, viz., the suit O.S. No. 827 of 1984 was decreed, against which

the defendants 10 and 11 filed appeal in A.S. No. 174 of 1987 and the appeal was also dismissed. At the stage of appeal, evidence was let in to

the effect that there was a partition among the three brothers. The plaintiffs were not bound by the decree since they were not parties to the suit

and the defendants 1 to 9 were estopped from denying in respect of 1/3rd share of the plaintiffs. Since the twelfth defendant is residing away and is

unable to join with the plaintiffs, he is impleaded as 12th defendant. Hence, the suit.

The suit was contested only by the second defendant, who is the appellant herein, by filing written statement as follows:- The second defendant

filed a suit against the tenth defendant in O.S. No. 827 of 1984 on the file of the Court of District Munsif, Cuddalore, for declaration of his right to

the pathway running through the suit property on its south-eastern portion and also for removal of the superstructure put up by him and the suit was

decreed on 24.4.1987. The first appeal as well as the second appeal preferred by the tenth defendant were dismissed. The suit, subject matter of

this appeal, has been filed by the plaintiffs at the instance of the tenth defendant. The suit property originally belonged to the three brothers, viz.,

Pallandu, Parasuraman and the 10th defendant Chinnaraju and they had divided the suit property long ago. The eldest brother Pallandu was in

possession and enjoyment of western-most 1/3rd share, Parasuraman was in possession and enjoyment of the middle 1/3rd share and the

youngest brother, the 10th defendant Chinnaraju is in possession and enjoyment of eastern-most. The property that was allotted to Parasuraman

was sold in Court auction in execution of the decree in O.S. No. 465 of 1960 on the file of the Sub-Court, Cuddalore. That suit was filed by one

Thangammal and the property was purchased on 14.11.1963 in Court auction sale by one Arumuga Nattar and the sale was confirmed in his

favour and he took possession of Parasuraman''s property without the help of the Court and sold the same to the second defendant under a sale

deed dated 10.02.1984 and thus, the family of the second defendant has become entitled to 2/3rd share in the suit property. The tenth defendant is

in possession of the eastern 1/3rd share of the property. Inasmuch as the share of Parasuraman, the predecessor of the plaintiffs, has been sold in

Court auction sale, the plaintiffs have no right in the suit property and hence, the suit for partition will not lie.

The first plaintiff examined herself as P.W.1 and marked Exs.A-1 to A-7 before the trial Court and as against the evidence let in on the side of

the plaintiffs, the second defendant examined himself as D.W.1 but no document was marked on the side of the defendants. The trial Court,

considering such evidence let in on both sides, recorded finding that the plaintiffs have lost their title by virtue of the Court auction sale and from the

Court auction purchaser, the second defendant has purchased the share of Parasuraman and, therefore, negatived the claim of the plaintiffs in

respect of their 1/3rd share in the suit property and accordingly, dismissed the suit. The said judgment was challenged by the plaintiffs and the first

Appellate Court reversed the finding of the trial Court and allowed the appeal granting preliminary decree in respect of the 1/3rd share of the

plaintiffs in the suit property. While granting preliminary decree, the first Appellate Court found that the second defendant has failed to prove that

there was partition among the three brothers and since only the undivided 1/3rd share of the predecessor of the plaintiffs, viz., Parasuraman, has

been sold in Court auction sale, the auction purchaser could not have taken possession either through Court or outside and the only remedy for the

Court auction purchaser is to file a suit for partition and since no such suit has been filed, whatever right purchased by the Court auction purchaser

under Ex.A-3 has become extinguished by 1975 and held that no title is passed to the second defendant in view of the purchase under Ex.A-4 in

the year 1984 in respect of the said share in the suit property. The said judgment and decree are under challenge in this appeal.

At the time of admission of the Second Appeal, the following substantial questions of law were framed for consideration:-

(i) Whether in law the lower appellate Court has erred in overlooking that the suit is hit by res judicata since the decree and judgment in O.S. No.

827 of 1984 has become final?

(ii) Whether in law the lower appellate Court ought not to have seen that once it is admitted that Parasuraman''s 1/3rd share had been sold in Court

auction in E.P. No. 113 of 1963 in O.S. No. 465 of 1960, it is not open to the plaintiffs to claim any share in the property?

Heard the learned counsel for the appellant/second defendant as well as the respondents 1 to 4/plaintiffs.

The suit property is in T.S. No. 683 measuring 1320 square feet in total with 3 superstructure thereon in Gundu Uppalavadi village, Cuddalore.

Pallandu, Parasuraman and Chinnaraju, the 10th defendant are brothers. Their mother Amirthammal purchased the suit property along with other

properties from Velayutha Nattar and others as per sale deed Ex.A-1 dated 2.7.1924. The first plaintiff is wife, the plaintiffs 2 and 3, and the 12th

defendant are sons and the 4th plaintiff is daughter of Parasuraman. The defendants 1, 2, 6, 7 and 8 are sons and the defendants 3, 4, 5 and 9 are

daughters of Pallandu. The 11th defendant is wife of the 10th defendant. According to the plaintiffs, on the death of Amirthammal, her three sons,

viz., Pallandu, Parasuraman and Chinnaraju, the 10th defendant were in enjoyment of the suit property each by putting house separately without

any division. The property, immediately east of the suit property which also belonged to the three brothers, were brought to Court auction sale in

execution of decree obtained against the three brothers in O.S. No. 124 of 1956 and in the Court auction sale held on 4.12.1970, one Arumuga

Padayachi purchased the eastern property and took delivery of the same and thereafter he was in possession and enjoyment of the said property.

He sold the same to the 11th defendant Alamelu Ammal under the sale deed Ex.A-5 dated 3.12.1963 in which the 10th defendant, who was

employed in Court, put up a house and have been residing there. Parasuraman''s 1/3rd share in the suit property has been sold on 14.11.1963 in

Court auction sale in execution of Decree in O.S. No. 465 of 1960 on the file of the District Munsif Court, Cuddalore, in which one Arumuga

Padayachi purchased the share of Parasuraman and then sold the same to the second defendant as per the sale deed Ex.A-4 dated 10.2.1984. It

is admitted that the Court auction sale in respect of Parasuraman''s 1/3rd share in the suit property was also confirmed on 17.12.1963.

The case of the plaintiffs is that the Court auction purchaser did not take possession of the property purchased in the Court auction and has also

not taken delivery from the Court and so, the right of the Court auction purchaser has become extinguished, inasmuch as delivery of the property

was not taken within the prescribed period. It is also the case of the plaintiffs that Parasuraman and his two brothers continued to be in possession

of the suit property without division and after purchase from the Court auction sale, the second defendant constructed a house in the suit property

exceeding his 1/3rd share.

The case of the contesting second defendant is that the three brothers, viz., Pallandu, Parasuraman and Chinnaraju, the 10th defendant, had

divided the properties long ago, in which the western-most 1/3rd share was allotted to the share of Pallandu, the middle 1/3rd share was allotted to

the share of Parasuraman and the eastern-most share was allotted to the share of Chinnaraju, the 10th defendant and after division, they were in

possession of the properties accordingly. The middle 1/3rd share of Parasuraman was sold in execution of decree in O.S. No. 465 of 1960 on the

file of District Munsif Court, Cuddalore and was purchased by Arumuga Nattar on 14.11.1963 and the sale was also confirmed on 17.12.1963

and he sold the same to the second defendant as per sale deed Ex.A-4 dated 10.2.1984. Therefore, according to the second defendant, the family

of the second defendant is entitled to 2/3rd share, while the 10th defendant is entitled to eastern 1/3rd share. Inasmuch as the 1/3rd share of

Parasuraman has been sold in Court auction sale, the plaintiffs have no right in the suit property.

The crux of the case lies as to whether only undivided 1/3rd share of Parasuraman was purchased in Court auction sale by Arumuga padayachi

and since Arumugha Padayachi without taking delivery of the said property within the prescribed period, sold the same under Ex.A-4 to the

second defendant and as such, the right of the Court auction purchaser having been extinguished no title passed to the second defendant, in view of

the purchase from the Court auction purchaser under sale deed Ex.A-4 as claimed by the plaintiffs or as to whether the Court auction purchaser

took delivery of the specific share of Parasuraman in the suit property out of Court and inasmuch as the said property has been purchased by the

second defendant, the plaintiffs, who come under the branch of Parasuraman cannot claim the 1/3rd share of Parasuraman in the suit property.

The learned counsel appearing for the appellant/second defendant vehemently contended that as per oral partition among the three brothers,

viz., Pallandu, Parasuraman and Chinnaraju, the 10th defendant, they were in enjoyment of the respective shares allotted to them and only the

specific share of Parasuraman was sold in Court auction in execution of decree in O.S. No. 465 of 1960 and in view of the purchase by Court

auction purchaser, who in turn sold the same to the second defendant under Ex.A-4, the second defendant alone is entitled to the said share of

Parasuraman and therefore, the plaintiffs have no right in the suit property, much less 1/3rd share of Parasuraman.

The learned counsel appearing for the respondents 1 to 4/plaintiffs argued that inasmuch as the three brothers, viz., Pallandu, Parasuraman and

Chinnaraju, the 10th defendant were in enjoyment of the suit property on the death of their mother without division of the same and since only the

undivided share of Parasuraman was sold in Court auction in execution of decree in O.S. No. 465 of 1960, in which, the Court auction purchaser

Arumuga Padayachi purchased only the undivided 1/3rd share of Parasuraman and inasmuch as the Court auction purchaser did not take delivery

of the property purchased from the Court auction within the prescribed period, the right of Court auction purchaser has become extinguished.

Therefore, according to the learned counsel, the second defendant has no title in respect of 1/3rd share of Parasuraman, in view of the purchase

under the sale deed Ex.A-4 from the Court auction purchaser.

The learned counsel appearing for the respondents 1 to 4/plaintiffs further submitted that even though the Court auction purchaser purchased

the property on 14.11.1963, he did not take delivery within the prescribed period through Court and therefore, he has to take possession by filing

suit under Order 21 Rule 95 C.P.C. The learned counsel in support of such contentions has referred to the following decisions:-

(1) V.C. Thani Chettiar and Another Vs. Dakshinamurthy Mudaliar and Others, , in which, a Division Bench of this Court headed by the Chief

Justice has held thus:-

A person, who purchases an undivided share of a co-parcener of a joint Hindu family, cannot claim to be put in possession of any definite piece of

family property. He does not even acquire any interest in the property sold. He does not become a tenant-in-common with the members of the

family. He is not entitled to joint possession with them. He has only an equity to work out his rights by means of a partition standing in his vendor''s

shoes. The alienee''s suit for partition must be one for partition of the entire property and not for the partition of any specific item of, or interest in,

the family property. Such a suit, however, will not be technically on a part with a suit for partition filed by a co-parcener. Such a suit would not

have the necessary effect of breaking up the joint ownership of the members of the family in the remaining property nor the corporate character of

the family.

A suit by an alienee of an undivided share from a co-parcener of a Hindu Joint family, will fall under Article 144, so long as property concerned is

immovable property.

There can be no delivery, either symbolical or actual, in pursuance of the sale of an undivided interest in joint family property. It is not competent

to a court on a mere application for execution by a purchaser of such an undivided share to pass an order directing delivery of possession. The

purchaser cannot get the benefit of a fresh cause of action by any symbolical delivery which could not in law have been made to him.

(2) Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh and Others, , in which, the three Judges Bench of the Hon''ble Supreme Court

has held thus:-

Decree for personal debt against a co-parcener. Execution sale. Purchase of undivided interest of co-parcener including his sons'' interest.

Purchaser held did not acquire title to any defined share in property and was not entitled to joint possession from date of his purchase. He could

work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his

favour. Purchaser''s right to profits would date from the date of partition.

(3) Ganesh Babu and Another Vs. K.S. Radhakrishnan and Others, , in which this Court has held thus:-

The purchaser of a co-parcener''s undivided interest in joint family property is not entitled to possession of what he has purchased. His only right

is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the co-parcener

whose share he had purchased.

The first plaintiff as P.W.1 in her evidence denied that there was an oral partition 35 years before, in which western 1/3rd share was allotted to

the share of the second defendant''s father Pallandu, the middle 1/3rd share was allotted to the share of her husband Parasuraman and the eastern

1/3rd share was allotted to the share of the 10th defendant Chinnaraju. The second defendant as D.W.1 has put-forth such a case in his evidence

that after oral partition between three brothers, there have been enjoyment of the property separately by constructing house. It is also his evidence

that the Court auction purchaser Arumuga Padayachi also taken delivery of the property purchased in the Court auction sale, viz., the share of

Parasuraman, in which after taking possession, he constructed small house and was in enjoyment of the same and only thereafter, he sold the

property purchased in Court auction under Ex.A-4 to the second defendant on 10.2.1984. Further, he has admitted in his cross-examination that

there is no document to evidence the oral partition between the three brothers.

Though it is admitted that the entire suit property originally belonged to three brothers, viz., Pallandu, Parasuraman and Chinnaraju, the 10th

defendant, and 1/3rd share of Parasuraman was sold in Court auction sale in execution of decree in O.S. No. 465 of 1960 on the file of District

Munsif Court, Cuddalore and Arumuga Padayachi was the Court auction purchaser as per sale certificate Ex.A-3 dated 17.12.1963, there is

nothing to show that Arumuga Padayachi purchased specific share of Parasuraman or to show that after purchase in the Court auction, he had

taken delivery of the specific share of Parasuraman. Admittedly, no suit was filed for partition of properties purchased in the Court auction against

other co-owners, viz., Pallandu and Chinnaraju, the 10th defendant. In the written statement of the second defendant, it is stated that the Court

auction purchaser Arumuga Padayachi took possession of the property without the help of the Court and sold the same to the second defendant as

per sale deed Ex.A-4 dated 10.2.1984. Even on that aspect, there is no satisfactory evidence on the side of the contesting second defendant and

he has also not examined the Court auction purchaser Arumuga Padayachi to speak to the case that he has taken delivery of the specific share of

Parasuraman without the help of the Court. In fact, in the sale certificate Ex.A-3 and also in the sale deed Ex.A-4 executed in favour of the second

defendant, the property purchased by the Court auction purchaser Arumuga Padayachi and which property has been sold to the second defendant

under Ex.A-4, it is only mentioned as 1/3rd share out of 1320 square feet. It is also not stated in the sale deed Ex.A-4, as per which the said

property has been sold to the second defendant, that the property purchased by the Court auction purchaser Arumuga Padayachi was later taken

delivery without the help of the Court by the said Arumuga Padayachi. It is only stated in Ex.A-4 that after purchase in the Court auction, he has

taken delivery without giving details as to when and from whom such delivery was taken.

The suit O.S. No. 827 of 1984 was filed by the second defendant against his junior paternal uncle, the 10th defendant Chinnaraju in respect of

the pathway, which was filed claiming that after purchase of Parasuraman''s share, the second defendant, who is the son of Pallandu was entitled to

2/3rd share on the west and the 10th defendant Chinnaraju is entitled to 1/3rd share and the case of oral partition was also put-forth. Such a case

has not been proved in that suit also as it can be seen from Ex.A-6, the printed judgment of the District Munsif Court in that suit. Therefore, the

second defendant failed to establish that there was oral partition between 3 brothers during their life time, in which the western 1/3 share was

allotted to Pallandu, father of the second defendant, middle 1/3rd share was allotted to the share of Parasuraman and eastern 1/3rd share was

allotted to 10th defendant Chinnaraju.

No doubt, the first plaintiff as P.W.1 has admitted in her evidence that the brothers by putting separate houses were in enjoyment of the

property but, there is nothing to show that there was division in status between three brothers. If the property was divided even during the life time

of the three brothers as set out by the second defendant as D.W.1 and after purchase in the Court auction, the Court auction purchaser Arumuga

Padayachi took delivery of the specific share of Parasuraman, certainly in the sale certificate Ex.A-3 and also in the sale deed Ex.A-4 in favour of

the second defendant by the Court auction purchaser Arumuga Padayachi, the western boundary could have been mentioned as that of the share

of Pallandu and the eastern boundary as that of the share of Chinnaraju, the 10th defendant, but instead, in both the documents, the property

purchased is shown as 1/3rd share, viz., 440 square feet out of 1320 square feet on the west of Pavadai Nattar''s site and eastern boundary is

given as the lane of Swaminatha Padayachi. Therefore, the fact remains that there was no division in the family among three three brothers and

what was purchased by the Court auction purchaser Arumuga Padayachi in execution of decree in E.P. No. 113 of 1963 in O.S. No. 465 of

1960 is only undivided 1/3rd share of Parasuraman and which in turn the second defendant purchased from the Court auction purchaser Arumuga

Padayachi. There is nothing to believe or accept the case of the second defendant that after Court auction purchase, Arumuga Padayachi took

delivery of the specific share of Parasuraman without the help of Court and he sold the same to the second defendant pursuant to the sale deed

Ex.A-4.

Even in the sale deed Ex.A-2 dated 20.12.1973 executed in favour of the 10th defendant in respect of the western property by Kannappan,

the owner of the said property and which is after the oral partition set up by the second defendant, the eastern boundary is mentioned as the

property of Pallandu Padayachi and vagaira. Further, in the sale deed Ex.A-5 dated 3.12.1963 purchased by the 11th defendant, the wife of

Chinnaraju executed by Arumuga Padayachi, which is east of the suit property, the western boundary is described only as the property of Pallandu

Padayachi vagaira.

As rightly pointed out by the learned District Judge, even assuming that the Court auction purchaser Arumuga Padayachi took symbolic

delivery of the property purchased in the Court auction, he has got right of possession along with other co-parceners and has to seek his remedy

only by filing suit for partition within one year under Article 134 of the Limitation Act from the date of Sale.

No such case is made out by the second defendant that the Court auction purchaser Arumuga Padayachi took delivery of the property

purchased in the Court auction sale. He has also not examined the Court auction purchaser Arugmua Padayachi to speak such a case that after

purchase, the Court auction purchaser Arugmua Padayachi has taken delivery of the property purchased, viz., 1/3rd share of Parasuraman without

the help of the Court or to show that in the partition between the three brothers, the middle 1/3rd share was allotted towards the share of

Parasuraman, which he purchased in the Court auction. The Court auction purchaser being a stranger, his claim that he is in joint possession along

with co-parcener of the property after such purchase in Court auction is not acceptable.

Since the Court auction purchaser, Arumuga Padayachi did not file suit for partition in respect of 1/3rd share purchased in the Court auction, if

he has any right, is lost by efflux of time, since the Court auction purchaser has not taken possession after purchase of property under Ex.A-3

Court Certificate dated 17.12.1963 and therefore, his right has become extinguished after the expiry of 12 years. Inasmuch as the second

defendant purchased the property from the Court auction purchaser Arumuga Padayachi under Ex.A-4 on 10.2.1984 and since by the time the

Court auction purchaser has no subsisting title, the second defendant cannot claim any right in view of the purchase under Ex.A-4. The second

defendant failed to establish that there was partition among the three brothers. Since only undivided 1/3rd share of Parasuraman has been sold in

the Court auction sale and which has been purchased by Arumuga Padayachi, who did not take possession through Court or outside and he has

also not worked out his remedy by filing suit for partition, his right if any under Ex.A-3 has become extinguished by 1975. It follows, the second

defendant has no right in view of the purchase from the Court auction purchaser Arumuga Padayachi under Ex.A-4 in 1984.

The plaintiff has made out the case for partition of 1/3rd share in the suit property, inasmuch as the 1/3rd share of the predecessor-in-title that

of Parasuraman has not been lost to the family even after the Court auction purchase, viz., Arumuga Padayachi has not taken delivery of the

property through Court and also not worked out the remedy by filing suit for partition and separate possession of 1/3rd share relating to

Parasuraman.

The suit O.S. No. 827 of 1984 filed by the second defendant related to pathway right between him and his junior paternal uncle 10th

defendant herein, in that suit, the plaintiffs were not parties. Even assuming the plaintiffs herein are parties in that suit, this suit is not barred by res

judicata in view of the judgment delivered in that suit in O.S. No. 827 of 1984 under Ex.A-6 dated 24.4.1987. Even in that suit, it appears, the

10th defendant contested the suit denying the oral partition set up by the second defendant as plaintiff in that suit among the three brothers, viz., his

father Pallandu, Parasuraman and the 10th defendant Chinnaraju, who is only defendant in that suit. Therefore, it cannot be said that the suit is

barred by res judicata in view of the judgment delivered in O.S. No. 827 of 1984 under Ex.A-6.

Therefore for the above stated reasons, there is no reason to interfere with the judgment of the Principal District Court in reversing the

judgment of the trial Court by decreeing the suit by granting preliminary decree for partition in favour of the respondents 1 to 4/plaintiffs.

In the result, the Second Appeal fails and the same is dismissed, confirming the judgment and decree dated 9.2.1993 in A.S. No. 243 of 1991

by the Principal District Judge, Cuddalore. No costs.