IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10-12-2009 Coram THE HONOURABLE MR. JUSTICE B. RAJENDRAN A.S. No. 531 of 1999 1. M.A. Amanullah (Deceased) 2. A. Mohamed Ali 3. M.A. Shahul Hameed 4. Mahababunissa 5. Fathima Ali 6. Rahmathnisa 7. A. Asafali 8. A. Sheik Mujib Rahman 9. A. Fathima Parvin (Appellants 6 to 9 brought on record as legal heirs of the deceased 1st appellant vide order dated 18.9.2009 in CMP Nos. 1199 to 1201 of 2009) .. Appellants/Defendants 1 to 3,6 &7 Versus 1. Fathima Fareedunissa 2. Badrunnissa 3. M.A. Ashraff 4. M/s. Thiru Arooran Sugars Ltd rep. by its Company Secretary Head Office at L.Eldorado 112, Nungambakkam High Road Chennai – 600 034 .. Respondents/Plaintiffs Appeal filed under Section 96 of the Code of Civil Procedure against the decree and judgment dated 14.06.1999 made in O.S. No. 35 of 1997 on the file of the Additional District Judge, Pondicherry at Karaikal. For Appellants : Mr. T.P. Manoharan For Respondents : Mrs. Chitra Sampath for RR1 and 2 No appearance for R3 Mr.Srinath Sridevan for Mr. T.K. Seshadri for R4 https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT The plaintiffs/respondents 1 and 2 herein have filed O.S. No. 35 of 1997 on the file of the learned Additional District Judge, Pondicherry at Karaikal for the relief of partition and separate possession of the plaintiffs 2/10 shares in the property set out in the plaint schedule and for a mandatory injunction directing the first defendant to transfer 1,282 shares to the name of the first plaintiff and 1,283 shares to the 2nd plaintiff and also to pass a decree for account to the plaintiffs for the dividends received by him from the 5th defendant company from the date of death of Ahamed Maricar. The suit was decreed as prayed for with costs. Aggrieved by the same, the defendants 1, 2, 3, 6 and 7 have come forward with the present appeal. Pending appeal, the first defendant/first appellant died and his legal heirs were brought on record as appellants 6 to 9. 2. For the sake of convenience, the parties shall be referred to as they were arrayed before the court below. 3. The Plaintiffs 1 and 2 are sisters. The defendants 1 to 4 are brothers of the plaintiffs. The sixth defendant is the wife of the third defendant. The seventh defendant is the wife of the second defendant. The Plaintiffs and defendants 1 to 4 are daughters and sons of Ahamed Maricar and Ummasalma Ammal. The father namely Ahamed Maricar died in the year 1983 and the mother also died intestate in the year 1990. 4. The Plaintiffs contended that their father purchased shares in the fifth defendant mill. On the death of their father, plaintiffs and defendants 1 to 4 inherited the properties owned by him as per Mohammadean Law and therefore each of the plaintiffs are entitled to a right in the properties owned by their father in the ratio of 1:2 as per the Mohammadean Law i.e., the daughters put together takes one share and sons put together takes two shares. Therefore, the defendants each entitled to ½ shares and the plaintiffs are entitled to 2/5 shares. The defendants 1 to 4 are entitled to 8/10 shares and the plaintiffs together are entitled to 2/10 shares. According to the plaintiffs, the plaintiffs as well as the defendants 1 to 4 jointly applied to get succession certificate to transfer the shares standing in the name of their father in SOP No. 5 of 1991 on the file of the Additional District Judge, Karaikal. By an order dated 18.12.1991, the Court has granted succession certificate to all the petitioners, represented by the first defendant, who was the first petitioner in SOP No. 5 of 1991. 5. It is contended by the plaintiffs that they bonafide believed that the first defendant will take necessary steps to get the shares transferred in their name in proportion to their rights. The plaintiffs were awaiting to hear from the defendants 1 and 5. Since nothing is forthcoming for a long time, the plaintiffs asked the first defendant to have the shares transferred in the name of https://hcservices.ecourts.gov.in/hcservices/ the respective sharers as per law. In such circumstances, dispute arose between the parties and the first defendant attempted to transfer the shares in his own name. Therefore, on 05.11.1994, the plaintiffs sent a notice to the fifth defendant company calling upon them not to transfer the shares in favour of the first defendant. The fifth defendant sent a reply dated 15.12.1994 stating that they are proceeding to transfer the shares in the name of the plaintiffs and the defendants 1 to 4, but later on, the fifth defendant, by a letter dated 06.03.1995 indicated that they are going to transfer the shares in the name of the first defendant, in pursuance of the modified order passed in the succession certificate proceedings. According to the plaintiffs, they were not made parties to the proceedings in which the order passed in the succession certificate was modified in the name of the first defendant and such an order was obtained behind their back. The fifth defendant is sailing along with the first defendant to the detrimental interest of the plaintiffs. Immediately thereafter, the plaintiffs have filed O.S. No.100 of 1995 on the file of Principal District Munsif, Karaikal for the relief of interim injunction restraining the defendants from transferring the shares. The said suit was filed on 17.03.1995. In the said suit, the defendants 1 to 5 have taken a preliminary objection that the suit is not properly valued and therefore the Court has no jurisdiction to try the suit. Based on the preliminary objection, the suit was heard and returned for re- presentation before the proper Court. Aggrieved by the same, the plaintiffs have filed C.M.A. No. 12 of 1996 before the Additional District Judge, Karaikal, which was also dismissed on 01.10.1996. Though the appeal was dismissed, the appellate Court has made an observation in the appeal that if any party is aggrieved by the proceedings in Exs. A1 and A2,, after obtaining an order, the aggrieved party can seek necessary redressal before the appropriate forum. Pending the suit in O.S. No. 100 of 1995, the shares were transferred in the name of the first defendant by the fifth defendant, even though, it was communicated on 29.06.1995, whereas, the suit was filed only on 17.03.1995. Therefore, pursuant to the observations made by the appellate Court in C.M.A. No. 12 of 1996, the present suit has been filed by the plaintiffs seeking for partition and separate possession. 6. The first defendant filed written statement contending that the property namely shares have been purchased from and out of the funds of A.M.S. Brothers in Karaikal, which is a Partnership firm and the shares were obtained in the name of the four brothers as early as in the year 1964. These shares are therefore the benefits accrued to the respective partners from the status of their being the partners of M/s. A.M.S.Brothers, Karaikal. According to the first defendant, even during the life time of Ahamed Maraikar, his father, it was made clear that his rights over the business, shares and other benefits acccured in his capacity as Partner of M/s. A.M.S. Brothers shall go only to his male heirs i.e., his four sons namely defendants 1, 2, 3 and 4. Since he alone conducted the business and daughters have voluntarily parted from the firm and firm was re-constituted the shares are purchased https://hcservices.ecourts.gov.in/hcservices/ only by the firm, which is the property of the firm. Inasmuch as the defendants 1 to 4 are present partners under the re-constituted firm, they are only eligible for the share certificates originally produced by the firm. Even though succession certificate was obtained with the consent of the plaintiff and other legal heirs, as per law, yet, it was done only for the purpose of the first defendant alone and pursuant to the order of the court made in the Succession Certificate Proceedings in the year 1991, which was subsequently amended to the effect that the shares were to be transferred only in the name of first defendant the fifth defendant transferred the shares to the first defendant. Subsequent to the said transfer, the first defendant also re-transferred it to other brothers and respondents 6 and 7, wife of the defendants 2 and 3, therefore, when the shares have been totally transferred to third party, the suit is not maintainable. The very shares are not available and hence, the relief sought for in the suit has become infructuous. According to the first defendant, succession certificate itself was amended only in favour of the first defendant. It was further claimed that the shares have been transferred even before filing of the suit in O.S. No. 100 of 1995. 7. The fourth defendant filed separate written statement supporting the case of the plaintiffs. It is stated that he is entitled to 1/6th share from the family arrangement and he is ready to re-convey his shares as per the final decision of the Court. 8. The fifth defendant, namely the company, filed written statement stating that it issued transfer certificate in the name of the first defendant on 29.06.1995 and such transfer has been made as per the amended order issued by the Court in succession certificate proceedings on 18.08.1994 in which the court, which granted succession certificate, enabled Mr. Amanullah, the first defendant herein, to get the shares transferred the shares specified in the schedule and to receive the dividend and for transmission of the shares. Further, particulars have also been furnished in regard to the subsequent transfer of shares on 09.03.1996 in the name of the other defendants, year wise. The only defence raised by the fifth defendant was that the order passed by the Court in the succession certificate proceedings has been followed by them in accordance with law. 9. Based on the above pleadings, the parties went for a trial. The plaintiffs examined one Aslam on their side as PW1 and marked Exs. A1 to A13. On behalf of the defendants, the first defendant examined himself as DW1 and no documentary evidence has been marked. The court below, on consideration of the oral and documentary evidence, decreed the suit granting partition and also mandatory injunction directing the fifth defendant to transfer the shares in the name of the plaintiffs herein. 10. The point for consideration in this appeal is (i) whether the suit is maintainable in view of the earlier suit filed in O.S. No.100 of 1995 ii) Whether the suit is barred under Order II Rule 2 of CPC iii) To what other relief the plaintiffs are entitled to https://hcservices.ecourts.gov.in/hcservices/ 11. Mr. T.P. Manoharan, learned counsel appearing for the defendants /appellants vehemently attacked the decree and judgment of the court below on thee grounds namely (i) the suit is not maintainable in view of the fact that the earlier suit in O.S. No.100 of 1995 is a bar to the present suit inasmuch as the relief, which is now sought for, was available to the plaintiffs even at that point of time, but it was not sought for, therefore, the present suit is not maintainable (ii) the present suit is hit under Order II Rule 2 of CPC therefore the suit is liable to be dismissed in limine and (iii) the suit is barred by limitation in view of the fact that the shares have already been transferred before filing of the suit and the relief sought for in the suit has become infructuous. 12. At the outset, the learnd counsel for the appellants would submit that the property in question namely shares were originally purchased by father of the plaintiffs and defendants 1 to 4 from and out of the funds of the partnership firm, the shares were kept in the custody of the firm and it was treated as the property of the firm. Even before the death of the father, three months prior to his death, the firm was re-constituted and the shares were also given to the firm. The sons were inducted as partners in the newly constituted firm and the daughters have no interest in the firm as they were given in marriage. The marriage expenses and other benefits were given to the daughters long back and they have also excluded themselves from the business of the firm. Therefore, the daughters cannot have any legal right over the shares, which were purchased by the partnership firm. Even after 20 years of the death of the father, no money or shares was claimed, but at the same time, for effecting transfer of the shares, necessarily all the legal heris have to be arrayed as parties and accordingly the plaintiffs were arrayed as parties in the succession certificate proceedings. Under law, all the sharers should be joined as party to the succession certificate proceedings, therefore, the plaintiffs have been made as a party before the court. Merely because the plaintiffs were added as parties to the Succession Certificate Proceedings, that by itself would not clothe them with any right. Even succession certificate was obtained only in the name of the first defendant and it would only enure to his benefits. The subsequent amendment, which was made in the succession certificate was only to denote that succession certificate was not obtained for and on behalf of all the petitioners, but for the first defendant himself and the proceedings were initiated with the knowledge of every one. Under those circumstances, the fifth defendant has to follow the directives issued by the Court in the succession certificate proceedings. The fifth respondent cannot also question the same, if at all, the plaintiffs have to question it. When once an order is passed, it is for the plaintiffs to seek for cancellation of the order passed in the succession certificate proceedings, but without doing so, the suit, much less suit for partition, is not maintainable. Nevertheless, even the shares have been transferred and therefore, the suit for partition is not maintainable, if at https://hcservices.ecourts.gov.in/hcservices/ all, the plaintiffs ought to have filed a suit for declaration and paid court fee, without doing so, the present suit is not maintainable. 13. The learned counsel for the appellant further contended that in the written statement, one sentence has been made that "the suit is also bad for non joinder of the whole claim under Order II Rule 1 of CPC". Admittedly, wrong provision was quoted, however, the intention was that the earlier suit filed by the plaintiffs in OS. No. 100 of 1995 is only for the purpose of interim injunction restraining the defendants from transferring the shares, whereas, even at that point of time, by the notice issued by the plaintiffs themselves to the fifth defendant, it was stated that the shares should not be transferred. When the only recourse was already available for filing a suit for declaration that the plaintiffs are entitled for transfer of shares and when that was not filed and only injunjction suit was filed, the present suit is hit by Order II Rule 2 of CPC. Therefore, it has to be held that the court below exceeded its jurisdiction in granting the relief of partition. 14. Contra, Mrs. Chitra Sampath, learned counsel for the plaintiffs/ respondents 1 and 2 herein mainly argued that the succession certificate has been applied and obtained by all the parties together for transfer of shares and it was filed for and on behalf of the petitioners. She relied on Ex.A2, copy of the order made in S.O.P. No.5 of 1991, which would denote that "........ 15. "....Whereas you (the petitioners) applied on 22nd day of October 1991 for a certificate under Section 370 part 10 of the Indian Succession Act, 1925, in respect of the following company and bank shares. S.No.Name of the company/No. of Certificate No.&Total value bank shares Date 1. Thiru. Arooran Sugars 200 148 dt. 9.6.55 Rs.2000.00 Ltd 2. - do - 200 149 dt. 9.6.55 Rs.2000.00 3. - do - 200 150 dt. 9.6.55 Rs.2000.00 4. - do - 200 151 dt. 9.6.55 Rs.2000.00 5. - do - 200 152 dt. 9.6.55 Rs.2000.00 6. - do - 350 204 dt. 9.6.55 Rs.3500.00 7. The Karaikal Coop 025 63 dt. 24.5.56 Rs. 250.00 Urban Bank Ltd P.32 Karaikal ----------------- Total Rs.13750.00 ---------------- This certificate is accordingly granted to all https://hcservices.ecourts.gov.in/hcservices/ petitioners represented by the first petitioner and empowers you namely the first petitioner M.A. Amanullah in the above mentioned case to receive dividends and transfer the share certificate (deleted as per order in I.A. No. 1 of 1995 dated 06.01.1995) 15. She further contend that the plaintiffs and the defendants 1 to 4 jointly applied for successon certificate. Originally, the order was passed for the benefit of all the sharers. However, the same was modified as per the order made in I.A. No. 1 of 1995 dated 02.01.1995 in which the plaintiffs were not made party. The plaintiffs have not given their consent for filing the application for amendment. No doubt, they have not filed an application to set aside that order in view of the fact that the present suit has been filed seeking a comprehensive relief. Further, even if the word "on behalf of" is removed, still the order reads that the succession certificate is granted to all the petitoners represented by the first defendant and such words remain inteact which itself denotes and confirm that the intention of the Court was to grant the succession certificate for and on behalf of all the petitioners as they are all parties to the original succession proceedings. Therefore, even after the removal of the words 'for and on behalf of the petitioners', still the order would enure to the benefit of all the petitioners in that petition in which the plaintiffs also has a share. Under those circumstances, the transfer of the shares by the fifth defendant to the first defendant is legally not sustainable. In the ealrier notice issued to the fifth defendant on 10.11.1994, Ex.A4 it was stated that though they have given the consent and later divide the shares among us, since the attitude of the brothers have changed, they were constrained to withdraw the consent to change all the shares in the name of the first defendant. The same contents were reiterated in the subsequent letter dated 24.02.1995, Ex.A5 wherein also they have stated that "since malpractice from my brothers are likely, I wish to inform you that my individual shares be remain untouched until further written notification from me". Further, by letter dated 06.03.1995, Ex.A6, the plaintiffs were informed by the fifth defendnat that they are going to proceed with the transfer of shares in favour of the first defendant as per the succession certificate issued by the Court. On receipt of the said letter, the plaintiffs have sent a reply dated 09.03.1995 stating that they came to know the amendment only for the first time and requested to give them one week time to initiate necessary legal proceedings. Immediately, on 17.03.1995, the plaintiffs filed the suit in O.S. No. 100 of 1995 on the file of Principal District Munsif, Karaikal for injunction restraining the defendants from transferring the shares in the name of the first defendant. According to the plaintiffs, since on that day of filing the earlier suit namely 17.03.1995, the shares have not been transferred, the plaintiffs could only file a suit for bare injunction restraining the firth defendant from transferring the shares alone. Thereafter, pending suit, the shares were transferred by the fifth defendant on 29.06.1995, which is also admitted by the first defendant in the https://hcservices.ecourts.gov.in/hcservices/ written statement. In the meanwhile, the plaintiffs have filed C.M.A. No. 12 of 1996 against the return of the plaint in O.S. No. 100 of 1995 on the ground of jurisdiction and court fee. The District Court also confirmed the order of return passed by the trial court, however, the District Court has given a specific finding that if there are any disputes between the parties to the proceedings in Ex.A1 and A2 after obtaining an order, it is for the aggrieved party to file comprehensive suit and seek orders, permissible in Law. Therefore, the plaintiffs have filed the present comprehensive suit for partition and mandatory injunction and in such circumstances, the present suit is not a bar under Order II Rule 2 of CPC. 16. Even in respect of the claim to be made under Order II Rule 2 CPC, there must be a specific pleading stating that the earlier suit is identical in nature, pleading should be made, evidence should be let in, issues has to be framed, but nothing has been done. The defendants have also not able to establish that the cause of action for filing the present suit is available to the plaintiffs even at the time of filing the suit in O.S. No. 100 of 1995 so as to non-suit the plaintiffs. Contra, the cause of action arose for filing the present suit only on the date of transfer of the shares namely on 29.06.1995 and when the earlier suit in O.S. No. 100 of 1995 was filed on 17.03.1995, the plaintiffs had only an apprehension that the shares would be transferred in the name of the first defendant and therefore they filed only a suit for bare injunction. In such event, the present suit is maintainable and there is no embargo or bar for filing the present suit. 17. I have carefully considered the rival submissions made by both sides, perused the evidence on record. A perusal of the records would reval that the plaintiffs were hopefully waiting for transfer of the shares subsequent to the order passed in the succession certificate proceedings. As pointed out earlier, the succession certificate was applied by all the parties concerned jointly, including the plaintiffs. The succession certificate also reads that the petitioners therein are represented by the first defendant herein. No doubt, there is subsequent deletion in the later portion of the order to the effect of removing the words 'for and on behalf of the petitioner', but the same portion of the order still remains intact. When an admission has been made to transfer the shares, the earlier suit was filed in O.S. No. 100 of 1995 and at that point of time, there was no transfer of shares effected. Only on the apprehension, the plaintiffs have filed the suit in O.S. No.100 of 1995. When the plaint was returned for re- presentation to the competent court on the objection made by the first defendant on jurisdiction and court fee, the plaintiffs have taken the matter before the appellate Court by filing C.M.A. No. 12 of 1996 before the learned Additional District Judge. The appellate Court, in para-9 of the order dated 01.10.1996, held as follows:- "9. If there are any disputes arise, between the parties to the proceedings in Ex.A1 and A2 after obtaining an order, it is for the https://hcservices.ecourts.gov.in/hcservices/ aggrieved party to file comprehensive suit and seek orders, permissible in Law. Admittedly, Ahamed Maricar died intestate in the year 1983. Similarly, his wife also died in the year 1980 intestate. So, the heirs of the deceased Ahamed Maricar are entitled to respective shares of the estate of late. Ahamed Maricar under Mohameden Law. If the value of the right sought to be injuncted is assessable to Rs.13,00,000/-, then Principal District Munsif, Karaikal has no right to try the suit. Moreover, such suit requires necessary court fee under Court Fees Act" 18. Such an observation made by the learned Additional District Judge will clearly indicate that opportunity was given by the appellate Court to both the parties to the suit and liberty was given to them to take recourse under law in the event of dispute, by filing a comprehensive suit. This finding has not been challenged by the first defendant till date. As stated supra, the order of transfer itself was