IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.02.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Appeal Suit No.394 of 2008 1.Sumathi 2.Minor Varshini (minor rep. by her next friend Sumathi) .. Appellants Vs 1.Maheswari 2.Thangammal .. Respondents Prayer: This Appeal Suit has been preferred under Section 96 of C.P.C., praying to set aside the judgment and decree dated 20.04.2007 made in O.S.No.30 of 2004 on the file of the Additional District Court, Fast Track Court No.II, Gobichettipalayam by allowing the First Appeal. For Appellants : Mr.N.Manokaran For Respondents : Mr.P.Valliappan JUDGMENT This appeal has been arising out of the judgment and decree dated 20.04.2007 made in O.S.No.30 of 2004 on the file of the Additional District Court, Fast Track Court No.II, Gobichettipalayam. 2.The averments made in the plaint are as follows: (i) The suit properties are originally belonged to one Ramasamy Goundar, who is the father of the first plaintiff and the husband of the second plaintiff. Ramasamy Goundar is having one son name Mohanasundaram. Ramasamy Goundar died intestate on 05.03.1999 leaving behind his wife, the second plaintiff, his daughter, the first plaintiff and his son Mohana Sundaram. Mohana Sundaram's wife is the first defendant and her daughter is the second defendant. He died intestate on 09.04.2002. The suit properties were in common possession and enjoyment of both the plaintiffs and the defendants. (ii) The first plaintiff got marriage only on 13.11.1995 and she is the co-parcener. So the first plaintiff is entitled to 12/27 share and the second plaintiff is entitled to 7/27 share. The first and second defendants are each entitled to 4/27 share. When the plaintiffs made a demand for partition, the defendants are evading the same. Hence the plaintiffs constrained to file a suit for partition and separate possession of 19/27 share in the suit properties and prayed for a decree. 3.The gist and essence of the written statement filed by the defendants is as follows:- (i) The relationship between the plaintiffs and the defendants is admitted. During the lifetime of Ramasamy Goundar, the husband of the second plaintiff, Ramasamy Goundar filed a suit for partition against his son Mohanasundaram (i.e.) O.S.No.5 of 1999. During the pendency of the suit, Panchayatar intervened the parties and a compromise decree has been passed. In pursuance of the compromise decree, the entire first item of the property and portion of second item of the property have been allotted to the share of Mohanasundaram. Since Mohanasundaram died intestate, the defendants alone entitled to the share of the properties. The first plaintiff was one of the attestor in a compromise memo filed in O.S.No.5 of 1999. So she is not entitled to any claim in the properties on the basis of the Hindu Succession Act. (ii) During the lifetime of Mohanasundaram, he has leased out the properties to one Selvaraj, son of Ramasamy Goundar and annual lease has been fixed upto Rs.57,500/-. Mohanasundaram borrowed a sum of Rs.1,00,000/- from Selvaraj on 26.06.2000 and executed a registered Mortgage deed, which is yet to be discharged. He also borrowed a sum of Rs.50,000/- from Selvaraj on 29.05.2001 and executed another registered Mortgage deed, which is yet to be discharged. Further, Mohanasundaram had borrowed a sum of Rs.30,000/- on 01.10.2002 and a sum of Rs.10,000/- on 30.01.2002 and executed the promissory notes in favour of Selvaraj, which are yet to be discharged. So the first defendant as a legal heir of Mohanasundaram, is liable to repay the loan obtained by Mohanasundaram. (iii) During the lifetime of Ramasamy Goundar, he obtained a loan of Rs.38,930/- from Gobichettipalayam Co-operative Preliminary Agricultural Society. The first defendant has to repay the above said loan as well as a loan of Rs.38,880/- which has obtained by the deceased Mohanasundaram from Kongarpalayam Preliminary Agricultural Co-operative Bank. (iv) On 21.09.2000, Mohanasundaram borrowed a sum of Rs.1,00,000/- from Selvaraj and executed a promissory note. Item Nos. 1 and 2 of the suit properties are the subject matter of the mortgage and mortgaged to Gobichettipalayam Land Development Bank and Kongarpalayam Preliminary Agricultural Co-operative Society and that amount also yet to be discharged. The second plaintiff, who is the mother-in-law of the first defendant has caused cruelty to her, the first defendant has resided at her parents house. Hence she prayed for the dismissal of the suit. 4.The gist and essence of the additional written statement filed by the defendants is as follows: The suit properties are not joint family properties of Ramasamy Goundar and Mohanasundaram. Ramasamy Goundar himself filed a suit in O.S.No.5 of 1999 on the file of the Sub-Court at Gobichettipalayam for partition. The suit was disposed of and the suit properties were allotted to the share of Mohanasundaram. So the first plaintiff is entitled to 1/3rd share in the share allotted to Ramasamy Goundar in O.S.No.5 of 1999. The second plaintiff is also entitled to 1/3rd share and remaining 1/3rd share was allotted to the defendants. So the first plaintiff is not entitled any share in the properties allotted to Mohanasundaram in O.S.No.5 of 1999. The first plaintiff is not entitled to 12/27 share and she is not entitled any share in the properties allotted with the share of Mohanasundaram, who is the brother of the first plaintiff. Hence she prayed for the dismissal of the suit. 5.The trial Court, after considering the averments both in the plaint and the written statement and arguments of both the counsel, has framed three issues and considering the oral and documentary evidence, granted a preliminary decree stating that the first and second plaintiffs each entitled to 1/3rd share in the properties allotted to Ramasamy Goundar under Ex.C3. The second plaintiff is entitled to 1/3rd share and the defendants 1 and 2 each entitled to 1/3rd share in the properties allotted to Mohanasundaram under Ex.C3. Against which, the present appeal has been preferred by the defendants. 6.After hearing the arguments of both sides counsel, the following points for determination are framed: 1.Whether the suit is hit by res-judicata in view of the judgment passed in O.S.No.5 of 1999 on the file of the Sub-Court at Gobichettipalayam? 2.Whether the second respondent is liable to pay the debt incurred by the deceased Mohanasundaram? 3.Whether the judgment and decree passed by the trial Court are sustainable? 4.To what relief, the appellants are entitled to? 7.Point No.1: (i) The learned counsel for the appellants/defendants submitted that the suit is hit by res-judicata. Mohanasundaram, who is the husband of the first appellant/first defendant has indebted to a person and the amount is liable to be settled by all his heirs, who are claiming the share of the properties allotted to him. The trial Court has not considered the documents Exs.B2 to B8, in which, Mohanasundaram had borrowed money from D.W.2. Hence he prayed for that the second respondent/second plaintiff is also liable to pay the liability, while taking share in the properties of Mohanasundaram. (ii) Refuting the same, the learned counsel for the respondents/plaintiffs submitted that as per the evidence of D.W.2-Selvaraj, all the promissory notes are barred by limitation. The registered simple mortgage deed under Ex.B4 alone is binding the second respondent/second plaintiff. But other documents Exs.B2, B3, B5 and B6 are unregistered simple mortgage documents. They are created only for the purpose of this case. He further submitted that the trial court has considered all these aspects in proper perspective and came to the correct conclusion. So there is no infirmity or illegality in the judgment passed by the trial Court. Hence he prayed for the dismissal of the appeal. (iii) Admittedly, the genealogy is necessary for the disposal of the case, which is as follows: Ramasamy | Thangammal  (R2/P2) ----------------------------------------------- | | Mohanasundaram Maheswari-(R1/P1) (died on 09.04.2002) | Sumathi  (A1/D1) (Wife of Mohanasundaram) | Minor Varshini  (A2/D2) (Daughter of Mohanasundaram) (iv) There are two items in the suit property. Item No.1 is an agricultural land property and item No.2 is a house property. On the side of the respondents/plaintiffs, P.W.1 was examined and Exs. A1 to A6 were marked. On the side of the appellants/defendants, D.Ws.1 and 2 were examined and Exs. B1 to B8 were marked. On the side of the trial Court, Exs. C1 to C3 were marked. (v) Admittedly, Ramasamy Goundar has filed a suit for partition in O.S.No.5 of 1999 on the file of the Sub-Court, Gobichettipalayam against his son Mohanasundaram and that has been ended in compromise. As per Ex.C2, a compromise memo was filed in I.A.No.87 of 1999 in O.S.No.5 of 1999. In Ex.C2, P.W.1-the first respondent/first plaintiff is one of the attestor. The trial Court has considered the same and came to the conclusion that Exs.C1 and C2 are the compromise memos, which binding both the parties. Even though the appellants/defendants herein have raised the plea of res-judicata, after the death of Ramasamy Goundar and Mohanasundaram, right to sue has been occurred to the parties and the cause of action for filing the suit arose only on the date of death of Ramasamy Goundar and Mohanasundaram. Hence the suit is not barred by res-judicata. (vi) Furthermore, the parties to the present proceedings are not the parties in earlier proceedings. In such circumstances, I am of the view that the arguments advanced by the learned counsel for the appellants/defendants that the present suit is hit by res-judicata does not merit acceptance. Hence I am of the view that the present suit is not hit by principles of res-judicata. Point No.1 is answered accordingly. 8.Point No.2: (i) In respect of granting share in the suit property, the trial Court has considered Exs.C1 to C3, wherein a compromise decree was passed in O.S.No.5 of 1999. In that, a portion of second item of the property was allotted to Ramasamy Goundar. Since he died intestate leaving behind his wife, the second respondent/second plaintiff, son and daughter, the first respondent/first plaintiff, each entitled to 1/3 share in the property of Ramasamy Goundar. Since Mohanasundaram died, his property has been inherited by his wife and daughter along with Thangammal. So the trial Court has granted that the appellants/defendants and the second respondent/second plaintiff each entitled to 1/3rd share in the portion of second item of the property, which was allotted to Mohanasundaram under Ex.C3. (ii) It is pertinent to note that the respondents/plaintiffs herein have not preferred an appeal and they are not challenging the quantum of the share allotted to both the parties. So the appellants/defendants jointly entitled to 1/3rd share and the first and second respondent each entitled to 1/3rd share in the property allotted to Ramasamy Goundar under Ex.C3. (iii) In respect of the properties allotted to Mohanasundaram under Ex.C3, (i.e.) Item No.1 and portion of item No.2 in the suit properties, since Mohanasundaram died on 09.04.2002 leaving behind his wife and daughter, the appellants/defendants herein and his mother, the second respondent/second plaintiff, each entitled to 1/3rd share in the properties of Mohanasundaram. So the trial Court has considered this aspect and granted the second respondent/second plaintiff and the appellants/defendants 1 and 2 each entitled to 1/3rd share in the suit property allotted to Mohanasundaram under Ex.C3. So the findings in respect of grant of item Nos. 1 and 2 are hereby confirmed. (iv) The learned counsel for the appellants/defendants mainly focussing upon the documents Exs.B2 to B8 and submitted that after the partition, Mohanasundaram has executed a registered simple mortgage and obtained a loan that too to be discharged. Once the legal heirs of the deceased Mohanasundaram are entitled to his share and they are also liable to pay the debt obtained by the deceased Mohanasundaram. There is no quarrel over the above proposition. But the appellants/defendants herein have to prove that on the date of death of deceased Mohanasundaram, he is indebted to Selvaraj. To prove the same, D.W.2-Selvaraj was examined and Exs.B7 and B8- promissory notes dated 21.09.2000 and 01.10.2001 were marked. D.W.2 himself stated that the debt due on promissory notes are barred by limitation. So the estate of the deceased Mohanasundaram is not liable to meet out the time barred debt. (v) While considering the documents Exs.B2, B3, B5 and B6, they are unregistered documents. Even though it was dated 03.05.2000, 29.05.2001, 21.09.2000 and 26.06.2000, all are unregistered documents. So we will not fasten the liability to the second respondent/second plaintiff to pay that amount. Considering Ex.B4, it is a registered mortgage deed dated 21.09.2000 and mortgaged for a sum of Rs.10,000/-. So as per Ex.B4, both the appellants/defendants and the second respondent/second plaintiff are liable to pay the debt, as that the second respondent/second plaintiff is liable to pay 1/3rd share due under Ex.B4. So that amount has also to be paid by the sharers. So the estate of Mohanasundaram is divided into equal three shares and three sharers are liable to pay the debt due to the estate of Mohanasundaram. (vi) Furthermore, it is pertinent to note that during the lifetime of Ramasamy Goundar, he has obtained a loan from Bank, which was evidenced by Exs.A5 and A6. (vii) It is pertinent to note that as per Ex.A5, the father Ramasamy Goundar has obtained a loan. His daughter Maheswari and his son Mohanasundaram are jointly together executed the mortgage. Even though the respondents/plaintiffs have filed Exs.A5 and A6, but no one from the Bank was examined to prove that the debt is yet to be discharged. (viii) At this juncture, it is appropriate to consider the oral evidence of both sides. P.W.1-Maheswari, the first respondent/first plaintiff in her cross-examination, stated that Mohanasundaram has discharged the entire loan due to Gobichettipalayam Co-operative Agricultural Society after the partition. So there is no evidence to show that as per Exs.A5 and A6, there is a debt due to the Bank. D.W.1-Sumathi, the first appellant/first defendant in her evidence, stated that her husband has discharged the loan due to the Bank mentioned in Exs.A5 and A6. In her evidence, she has stated as follows: ".. .. nfhgpbrl;oghisak; gpujk epyts t';fpapy; Ml;L nyhd; xd;Wk;. ghy;gz;iz itg;gjw;fhf jdpahf xU nyhDk; th';fpapUe;jhh;/ me;j ,uz;L nyhd;fSf;fhf ntz;o jhth 1tJ ,d brhj;Jf;fis vd; khkdhUk; vd; fztUk; 1k; thjpa[k; nrh;e;J 01/12/95 njjpapy;