IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09-03-2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Appeal Suit (First Appeal) No.207 of 2010 & M.P.Nos.1 of 2010 and 1 of 2011 1. Rajalakshmi Ammal (died) 2. Rajaraman 3. Jayachandran 4. Mythili 5. K.Geetha .. Appellants/defendants Vs. 1. Navamani (died) 2. Ramachandran 3. Balachandran 4. Chandrasekaran 5. Malarvizhi .. Respondents/plaintiffs Appeal Suit (First Appeal) against the judgment and decree dated 27.6.2008 in O.S.No.32 of 2004 on the file of the Principal District Court, Villupuram District, Villupuram. For appellants : Mr.T.Sathiamoorthy For respondents : R-1 died Mr.N.Suresh for RR-2 to 5 JUDGMENT The First Appeal is filed against the judgment and decree dated 27.6.2008 in O.S.No.32 of 2004 on the file of the Principal District Court, Villupuram District, Villupuram. 2. The averments in the plaint are as follows: (a) The first plaintiff is the second wife of T.N.Venkatapathi Reddiyar and out of the lawful wedlock, three sons and a daughter were born to them and they are the plaintiffs 2 to 4 and the fifth plaintiff. The first defendant is the first wife of the deceased Venkatapathi Reddiyar and the defendants 2 and 3 are their sons and the fourth defendant is their daughter. The fifth defendant- Malarvizhi, is the daughter of pre-deceased daughter of Rajalakshmi and Venkatapathi Reddiar, i.e. one Sarojini Ammal and the fifth defendant succeeded to her estate. The said Venkatapathy Reddiar died https://hcservices.ecourts.gov.in/hcservices/ on 11.9.1966, leaving behind the plaintiffs and the defendants to succeed to the estate. Both the branches are entitled to equal half share in the properties. (b) After the death of the said Venkatapathy Reddiar, the dispute arose between the parties. The defendants filed a suit for declaration of title of A schedule properties herein, as if the entire properties belong to them, i.e. in O.S.No.94 of 1975 on the file of the Subordinate Judge's Court, Cuddalore. After contest, the trial Court granted decree in favour of the plaintiffs, subject to some rights of the plaintiffs 2 to 5 herein. Against the said decree, the plaintiffs and the defendants have filed separate First Appeals, in A.S.No.112 of 1978 and A.S.No.127 of 1978 on the file of the District Court, Cuddalore. The First Appeals filed by the defendants in A.S.No.112 of 1978 was dismissed and the First Appeal filed by the plaintiffs in A.S.No.127 of 1978 was allowed, against which, the defendants herein filed Second Appeal in S.A.No.1310 of 1981 before this Court, which was dismissed, holding that the marriage between the first plaintiff and the deceased Venkatapathy Reddiar is valid and the children born to them, namely the plaintiffs 2 to 5 are born through a valid marriage. In paragraph 39 of the judgment, this Court observed that, "the defendants are held to be legally entitled to share in the joint family properties and the plaintiffs (defendants herein) are not entitled to claim either the declaration of their exclusive title or the relief of injunction. The plaintiffs and defendants are jointly entitled to the suit properties and other properties of the family." (c) The suit properties are described in the plaint as Items 1 to 11 in A schedule properties, Items 1 to 3 in B schedule properties and other properties of the joint family of the plaintiffs and defendants. The plaintiffs are entitled to half share in the properties. (d) If the defendants are not able to deliver half share in B schedule properties, they should be liable in the value of half of B schedule properties. In item-11 of A schedule properties, there was a big mango grove, containing 50 mango trees not less than 35 years. The defendants herein without any manner of right, cut and carried away the trees worth not less than Rs.1 lakh and so, the plaintiffs are entitled to get Rs.50,000/- towards their half share on the same and the same is described as C schedule properties. (e) The Second Appeal in S.A.No.1310 of 1981 was filed by the defendants, in which the plaintiffs obtained an order of injunction in C.M.P.No.1943 of 1981 in S.A.No.1310 of 1981. They have filed a petition to vacate the interim order of injunction, and in that application, the defendants herein gave an undertaking before the High Court that they would not cut the trees, in C.M.P.No.3926 of 1985. Inspite of the said undertaking given by the defendants, they https://hcservices.ecourts.gov.in/hcservices/ have cut and carried away the trees through one Pattusamy Mudaliar, who also filed O.S.No.283 of 1985 on the file of the District Munsif Court, Villupuram, which was dismissed, against which, First Appeal was filed, which was also dismissed. (f) The plaintiffs herein issued notice on 25.2.2000, claiming partition of half share in the suit properties. The defendants have given reply on 15.4.2000, containing false allegations. Hence, the plaintiffs were constrained to file the present suit for partition and separate possession of half share in A, B and C schedule properties and to direct the defendants to pay mesne profits and for costs. 3. The gist and essence of the written statement filed by the second defendant, adopted by other defendants, are as follows: (a) The first plaintiff was only concubine of Venkatapathy Reddiar. The plaintiffs 2 to 5 are their illegitimate children. The plaintiffs and the defendants did not constitute a Hindu joint family and the plaintiffs were not in joint possession of the suit properties. (b) Venkatapathy Reddiar, out of his infatuation towards the first plaintiff, transferred more than 7 acres of his valuable ancestral wet lands and also a tiled house, under several sale deeds without receiving any consideration for maintaining her and her children till his lifetime. The transfers made in favour of the first plaintiff are nominal and were not intended to clothe the first plaintiff with any title to the properties. (c) The first defendant being a rustic woman with little education, was completely dependant upon her husband Venkatapathy Reddiar and hence, she could not resist the pressure and compulsion of her husband to execute the signed sale deed in favour of the first plaintiff in respect of the tiled house, which is her Sridhana property got from her parents. The plaintiffs are enjoying the above mentioned properties. Venkatapathy Reddiar died on 11.9.1966. The defendants have openly denied their claim on the alleged right of the plaintiffs in the share of the properties and have asserted their own hostile adverse title to the properties of Venkatapathy Reddiar to the full knowledge of the plaintiffs. (d) Even in prior litigations and connected appeals, the defendants have openly denied the status of the plaintiffs and claimed title and have asserted their own legal and absolute title to the properties in question. The suit is barred by limitation. They have to file the suit within 12 years from 11.9.1966 when Venkatapathy Reddiar died and succession was open. The suit is barred by limitation and by adverse possession against the ouster of the plaintiffs by the defendants who have been in open and uninterrupted https://hcservices.ecourts.gov.in/hcservices/ and continuous possession and enjoyment of the properties in overt assertion of their own hostile title as against the plaintiffs eversince 11.9.1966. (e) The pendency of the previous litigation will not have any legal effect of arresting the running of time against the plaintiffs and will not interrupt the adverse possession and ouster by the defendants as against the plaintiffs. The judgment of this Court will not give rise to any fresh cause of action and will not revive the still-born claim of the plaintiffs after 33 long years and more when the defendants have been in exclusive possession and enjoyment of the suit properties in their own right. (f) The properties mentioned in C schedule, i.e. the mango grove and the mango trees were planted and reared by Pattusamy Mudaliar, who sold away the standing trees to one Narayanasamy Gounder of Kadathur for Rs.6,000/- under the sale deed dated 18.3.1985. Immediately, after the said purchase, Narayanasamy Gounder felled down the trees and took away the same. The defendants had nothing to do with the drawing or rearing of the mango trees. The said Pattusamy is not the proxy of the defendants. The defendants never cut and carried away all those trees. The plaintiffs' claim of Rs.50,000/- as damages/compensation, is untenable. If the plaintiffs have any subsisting right in respect of the mango grove, they should work out their remedy if any, against the said Pattusamy Mudaliar, the mortgagee and his vendee Narayanasamy Gounder who cut and carried away those trees even as early as in 1985. It is also time barred. (g) The third defendant and his junior paternal uncles who are all the 11 co-sharers of the vacant site in R.S.Nos.614, 616 and 646/6, jointly sold away the said site to a third party and it is the said purchaser who formed out the house plots and disposed of them to third parties. The defendants have nothing to do with the formation of the house plots or with the different sales thereof. The plaintiffs should work out their remedy if any, against the paternal uncles of the second and third defendants. Their vendees and their successor-in-interest are necessary parties and hence, the suit is bad for non-joinder of necessary parties . (h) All the properties are not included in the present plaint and so, the suit is bad for partial partition. During the lifetime of Venkatapathy Reddiar, he incurred several debts to the tune of Rs.67,000/- during his lifetime for his lavish spending for the plaintiffs and for meeting the frequent demands of the first plaintiff, who robbed him of his monies and properties. (i) The deceased Venkatapathy Reddiar executed the 'bogiyam deed' in favour of Pattusamy and he also borrowed money on promissory notes, and also the hand loan from Munusamy of Melakondai. The second and third defendants alone discharged those debts after https://hcservices.ecourts.gov.in/hcservices/ the lifetime of Venkatapathy Reddiar. If at all, the plaintiffs are entitled to half share in the properties in question, as wrongly claimed by them, they are also bound to c contribute the share of the liabilities as detailed above. (j) The Court fee paid is not correct. The plaintiffs are not entitled to any share in the properties. The suit ought to have been valued under Section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act and not under Section 37(2) of the Act. The suit is barred by limitation and the defendants prayed for dismissal of the suit with exemplary costs of Rs.5,000/-. 4. The trial Court, after considering the averments in the plaint and in the written statement, and after hearing the arguments of both the counsel, framed six issues for consideration and after considering the oral evidence of P.W.1 and D.Ws.1 to 6 and the documentary evidence of Exs.A-1 to A-14 and Exs.B-1 to B-57, granted preliminary decree of partition, i.e. half share in A and B schedule properties and Rs.50,000/- as compensation in respect of C schedule properties and with costs, and the plaintiffs were directed to file separate petition under Order 20 Rule 18 CPC regarding future mesne profits. Challenging the judgment and decree of the trial Court, the defendants 2 to 5 have come forward with the present First Appeal. 5. After hearing the arguments of both sides, this Court frames the following points for determination in this First Appeal: (i) Whether the trial Court is correct in rejecting the plea of the appellants/defendants 2 to 5 that they have prescribed title by adverse possession by ouster ? (ii) Whether the suit is barred by limitation ? (iii) Whether the suit is bad for partial partition ? (iv) Whether B schedule properties are available for partition ? (v) Whether the trial Court is correct in awarding Rs.50,000/- as damages/compensation as claimed in C schedule ? (vi) Whether the trial Court is correct in rejecting the debts borrowed by Venkatapathy Reddiar ? (vii) Whether the Court Fee paid under Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act, is correct ? (viii) Whether the judgment and decree of the trial Court are sustainable ? and https://hcservices.ecourts.gov.in/hcservices/ (ix) To what relief the appellants/defendants 2 to 5 are entitled to ? 6. The appellants/defendants 2 to 5 and the respondents/plaintiffs 2 to 5, are the legal heirs of the deceased Venkatapathy Reddiar. The appellants/defendants 2 to 5 are the children born through the first wife of the deceased Venkatapathy Reddiar, namely Rajalakshmi Ammal (deceased first defendant) and the respondents/plaintiffs 2 to 5 are the children born through the second wife of the deceased Venkatapathy Reddiar, namely Navamani (deceased first plaintiff). The properties are ancestral properties of Venkatapathy Reddiar. The appellants/defendants 2 to 5, disputed the status of the respondents/plaintiff 2 to 5. In the Second Appeal judgment, as per Ex.A-4, dated 5.12.1990 in S.A.No.1310 of 1981, the legal status of the respondents/plaintiffs 2 to 5 was declared by this Court and so, immediately they filed the present suit for partition. The trial Court decreed the suit as prayed for, against which, the present First Appeal has been preferred by the defendants 2 to 5. 7. Learned counsel appearing for the appellants/defendants 2 to 5 submitted that the appellants have prescribed title by adverse possession by ouster. In Ex.B-48, dated 4.11.1974, the respondents/plaintiffs 2 to 5 demanded partition and half share in the suit properties and reply had been issued under Ex.B-49 on 12.11.1974. Subsequently, the suit had been filed and so, the respondents/plaintiffs 2 to 5 were out of possession even as per the admission made on 4.11.1974. The present suit was filed on 4.9.2000 and so, the defendants have prescribed title by adverse possession by ouster. 8. Another limb of argument advanced by learned counsel appearing for the appellants/defendants 2 to 5 is that the properties were purchased in the name of the deceased first plaintiff Navamani and she has purchased some properties under Ex.B-3, dated 4.4.1958, Ex.B-6 dated 6.1.1958 and Ex.B-7 dated 29.1.1959. These properties were not included and it was also the joint family properties and hence, the suit is bad for partial partition. 9. Learned counsel for the appellants/defendants 2 to 5 further submitted that the respondents/plaintiffs 2 to 5 valued the properties and paid the Court Fees as per Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act and admittedly, as per the version under Ex.B-48, dated 4.11.1974, the plaintiffs are out of possession and so, the plaintiffs ought to have valued the suit under Section 37(1) of the said Act. 10. The learned counsel appearing for the appellants/defendants 2 to 5 further stated that B schedule properties do not belong to Venkatapathy Reddiar alone and they are joint family properties of https://hcservices.ecourts.gov.in/hcservices/ the deceased Venkatapathy Reddiar and his cousin and so they have been given power to plot out the properties and sell the same to different persons and to the cousins, and the junior paternal uncle of the appellants/defendants 2 to 5 were not impleaded as parties and so, the respondents/plaintiffs 2 to 5 are not entitled to any share in the properties. 11. Learned counsel appearing for the appellants/defendants 2 to 5 further submitted that C schedule properties are claimed by way of damages for cutting and carrying away 52 mango trees in Item 11 of A schedule properties and it was planted by one Pattusamy who filed the suit earlier and so, the amount claimed is very excessive. The trial Court has not considered this factum. 12. Relying on the said contentions, learned counsel appearing for the appellants/defendants 2 to 5 prayed for allowing the First Appeal and dismissing the suit. To substantiate his contentions, he relied on various decisions. 13. Repudiating the said contentions, learned counsel appearing for the respondents/plaintiffs 2 to 5 submitted that admittedly, the suit properties are A schedule properties of ancestral properties and joint family properties of the deceased Venkatapathy Reddiar. He got the same under partition. The cause of action of the suit arose only on the dismissal of the Second Appeal as found in Ex.A-4, dated 5.12.1990 and the present suit had been filed within 12 years, i.e. on 4.9.2000 and hence, the appellants/defendants 2 to 5 have not prescribed title by adverse possession by ouster. Under Ex.A-4, in paragraph 39 of the judgment of this Court in S.A.No.1310 of 1981, a declaration had been given in favour of both the plaintiffs and the defendants in the present case and hence, there is cause of action and the status of the respondents/plaintiffs 2 to 5 had been declared only on 5.12.1990 as per Ex.A-4 judgment, and the right to sue accrues only from that date and so, the suit is not barred by limitation. Furthermore, the appellants/defendants 2 to 5 have not admitted the share in the suit properties and they are not enjoying the same hostile to the interest of the respondents/plaintiffs 2 to 5. The trial Court is correct in holding that the respondents/plaintiffs 2 to 5 have not prescribed title by adverse possession by ouster. 14. Learned counsel appearing for the respondents/plaintiffs 2 to 5, further stated that Exs.B-3, B-6 and B-7 came into existence respectively in 1958 and 1959 and in such circumstances, so far, the parties have not challenged those sale deeds Exs.B-3, B-6 and B-7 within 12 years from the date of alienation, because Ex.B-2 dated 25.10.1960 was executed by Venkatapathy Reddiar, the father of both parties in favour of the deceased first plaintiff, Ex.B-3 dated 4.4.1958 was executed by the deceased first defendant in favour of the deceased first plaintiff, the mother of the appellants/defendants https://hcservices.ecourts.gov.in/hcservices/ 2 to 5 and Ex.B-6 dated 6.1.1958 was executed by the deceased Venkatapathy Reddiar in favour of the deceased first plaintiff, and all these have been executed on behalf of the minor children and in such circumstances, the parties have not challenged the same, and so, they are not the ancestral properties and it is only separate properties and self-acquired properties of the deceased first plaintiff and therefore, the suit is not bad for partial partition. Learned counsel appearing for the respondents/plaintiffs 2 to 5 further submitted that it is true that B schedule properties and other adjacent properties have been sold after obtaining sanction for the lay-out by 11 persons. He fairly conceded that the purchasers of the lay-out of the plots have not been impleaded. 15. Learned counsel appearing for the respondents/plaintiffs 2 to 5, further stated that as per the judgment of this Court as seen from Ex.A-4, the declaration had been granted in favour of both the appellants/defendants 2 to 5 and the respondents/plaintiffs 2 to 5 and so, they are the co-owners and the possession of one co-owner is the possession on behalf of the other co-owners and since the appellants/defendants 2 to 5 are in possession and enjoyment of the properties, it is deemed as joint possession of the respondents/plaintiffs 2 to 4 and so, the suit has been properly valued under Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act, and the same does not warrant any interference by this Court. 16. Learned counsel appearing for the respondents/plaintiffs 2 to 5 further contended that in A schedule properties, in item 11, there are 52 mango trees, which are about 35 years old, and even though injunction has been granted, they have cut and carried away the same and so, the value is more than Rs.1 lakh, but they are claiming only Rs.50,000/- being the half of the share. Pattusamy earlier filed the suit in O.S.No.283 of 1985 in respect of the properties and the suit had been dismissed as seen from Ex.A-12 and the suit register extract had been marked as Ex.A-13 and so, the trial Court considered all these aspects in proper circumspection and granted a decree, and hence, he prayed for dismissal of the First Appeal. Points (i) and (ii): 17. Admittedly, the suit properties belong to Venkatapathy Reddiar. His first wife is the deceased first plaintiff Rajalakshmi and the second wife is the deceased first defendant Navamani and both of their children are as shown in the following genealogy:- https://hcservices.ecourts.gov.in/hcservices/ Venkatapathy Reddiar | (died on 11.9.1966) |----------------------------|----------------------------------| = = first wife Rajalakshmi Ammal second wife Navamani (deceased first defendant) (deceased first plaintiff) | | |---------| ---- -------|--------------| | ----------|--------|---------------| Rama Bala Chandra Sarojini Ammal Rajaraman Jaya Mythili Geetha chandran chandran sekaran | chandran P2/R2 P3/R3 P4/R4 | D2/A2 D3/A3 D4/A4 D5/A5 Malarvizhi (daughter) |P5 (R5) 18. During the pendency of the suit, both the wives, namely Navamani, the deceased first plaintiff (first wife) and Rajalakshmi Ammal, the deceased first defendant (second wife) died. 19. After the death of the deceased Venkatapathy Reddiar on 11.9.1966, since the appellants/defendants 2 to 5 have not given any share to the respondents/plaintiffs 2 to 5 and hence, the plaintiffs have issued notice to the defendant(s) under Ex.B-48 on 4.11.1974. The defendants have replied under Ex.B-49 on 12.11.1974. Immediately, the appellants/defendants 2 to 5 filed a suit in O.S.No.94 of 1975 on the file of the Sub-Court, Cuddalore. The judgment in that suit was passed under Ex.A-1 on 25.11.1977, as per which, the suit had been decreed in favour of the plaintiffs therein (the appellants herein), declaring title to the suit properties, subject to the rights of the defendants therein (the respondents herein) in the share of their father and injunction was granted restraining the defendants till the rights are worked out in the partition suit, and as against the said decree in Ex.A-1, the defendants therein filed A.S.No.112 of 1978 and the plaintiffs therein filed A.S.No.127 of 1978, and after contest, A.S.No.112 of 1978 was dismissed and A.S.No.127 of 1978 was allowed, holding that the marriage between the deceased first plaintiff Navamani and Venkatapathy Reddiar is valid and a finding has also been given that the defendants therein (respondents/plaintiffs herein) will be entitled only to succeed to the share of their father in the ancestral properties . In the result, the plaintiffs herein were not entitled to absolute right in the suit properties and the defendants herein will have share in the properties, as the heirs of Venkatapathy Reddiar, and against the said judgment in the First Appeal, a Second Appeal was preferred before this Court in S.A.No.1310 of 1981, which has also been dismissed, as seen from Ex.A-4, dated 5.12.1990, and in paragraph 39 of the judgment in the Second Appeal, it was specifically mentioned as follows: "39. In the result, the defendants are held to be legally entitled to shares in the joint family properties. The plaintiffs are not entitled to claim either the declaration of their exclusive title or the relief of https://hcservices.ecourts.gov.in/hcservices/ injunction. The plaintiffs and defendants are jointly entitled to the suit properties and other properties of the family." 20. So, a declaration has been given and the plaintiffs and the defendants are stated to be jointly entitled to the suit properties and the other properties of the family. 21. Before the trial Court, the appellants/defendants 2 to 5 raised a defence that it is only passing and casual remarks while pronouncing the judgment in Second Appeal, and it is "obiter dicta" of the Court. The trial Court, after considering the same, came to the conclusion that they were neither passing remarks nor comments. As per Ex.A-4, two questions arose mainly before the Court below as to whether the defendants were Hindus and whether there was a valid marriage between the deceased Venkatapathy Reddiar and the deceased first defendant (second wife). In the said Second Appeal, it was decided in paragraph 37 of the judgment, that, "... Hence, the marriage between the first defendant and Venkatapahy was valid in Hindu Law and it was not invalidated by the Christian Marriage Act". So, the marriage between the deceased Venkatapahy Reddiar and the deceased first plaintiff Navamani, has been declared as valid. As per paragraph 39 of the judgment in Second Appeal (Ex.A-4), a declaration has been given in favour of both the plaintiffs and the defendants