IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.4.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.250 of 2007 and M.P.Nos.1 & 2 of 2008 1.Manickammal 2.Patchaiammal 3.Ramasamy 4.M.Raja 5.K.Raja 6.Amirthammal 7.Rajammal 8.Unnamalaiammal 9.Seenu 10.Nondiyappan Vettu Manickam 11.Kannudaiyan ....Appellants/Defendants vs. 1.Malliga 2.Agambaram 3.Nandhi Kesavan 4.Parvathi 5.Rajappan ... Respondents/Plaintiff & Defendants This second appeal is filed against the judgement and decree dated 31.1.2007 passed by the Principal District Judge, Vellore District, in A.S.No.14 of 2006 confirming the judgement and decree dated 22.2.2006 passed by the Subordinate Judge, Thiruppathur, in O.S.No.68 of 2003. For Appellants : Mr.S.V.Jayaraman,Sr.counsel for Mr.K.R.A.Muthukrishnan For Respondent : Mr.R.Yashod Varadhan,Sr.counsel for Mr.Ramalingam & Associates JUDGMENT This second appeal is filed by some of the defendants, inveighing the judgement and decree dated 31.1.2007 passed by the Principal District Judge, Vellore District, in A.S.No.14 of 2006 https://hcservices.ecourts.gov.in/hcservices/ confirming the judgement 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. 2. The parties, for the sake of convenience are referred to hereunder according to their litigative status and ranking before the trial Court. 3. 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 properties. (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 whatsoever; (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) Whereupon 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 were marked. The 4th defendant 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. 3. Being aggrieved by the judgements and decrees of the Courts below, this second appeal is focussed 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? https://hcservices.ecourts.gov.in/hcservices/ 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 estoppel 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 under Section 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 entitled for suit property as against the well considered oral and documentary evidences adduced by the appellants?” (extracted as such) 4. My learned predecessor framed the following substantial questions of law for consideration. "1. 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? 2. 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 estoppel by https://hcservices.ecourts.gov.in/hcservices/ pleading by predecessor's in title of the appellants under Exhibit A18 document?” 5. I would like to re-frame the substantial question of law as under: Whether the Courts below were justified in granting the reliefs of declaration and injunction in favour 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-parcener and other sharers? 6. Both sides advanced arguments. 7. The warp and woof, the gist and kernal 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 estoppel or lis pendens could be pressed into service in favour of the first respondent/plaintiff by the Courts below. Accordingly, the learned Senior counsel for the appellants/defendants would pray for setting aside the judgements and decrees of the Courts below and for dismissing the original suit filed by the first respondent/plaintiff herein. 8. Per contra, in an attempt to torpido and pulverise 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: https://hcservices.ecourts.gov.in/hcservices/ (i) The plaintiff is a bona fide purchaser for value without notice of the co-parcenary 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 favour 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 favour of the other defendants and various other persons and in such case, the appellants/defendants herein are having no locus standi to prosecute the second appeal. Accordingly the learned Senior counsel for the plaintiff would pray for dismissing the second appeal. 9. 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-parcenary, purchases an item of property, which forms part of the co-parcenary 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 favour 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. 10. 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 estoppel and lis pendens 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. https://hcservices.ecourts.gov.in/hcservices/ 11. 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 enure to the benefit of the plaintiff, who is in need of relief in her favour. 12. 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 C.P.C. 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. 13. 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 favour and it would be for the Court concerned to decide it on merits based on the well established principles governing such sort of matters. 14. 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 otious. 15. I would like to recollect the following maxim: 'Jus superveniens auctori acrescit successori' – An additional or enhanced right for the possessor accrues to the successor. 16. 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. 17. 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 favour of the https://hcservices.ecourts.gov.in/hcservices/ 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 reliefs. 18. The learned Senior counsel for the second appellants/defendants also would be having no objection for such a course being resorted to. 19. 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 reliefs and also the plaintiff is at liberty to get impleaded the other connected parties in this regard. 20. 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. 21. 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. 22. In the result, the second appeal is disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar Msk To 1. The Principal District Judge, Vellore. 2. The Subordinate Judge, Thiruppathur. 3. The Section Officer, VR Section, High Court, Madras + 1 cc to Mr.K.R.A. Muthkrishnan, Sr.27901 + 2 ccs to Mr. Ramalingam, Associates, SR.28527 S.A.No.250 of 2007 MBS(CO) EU 5.5.11 https://hcservices.ecourts.gov.in/hcservices/