The High Court dismissed the second appeal challenging a final decree in a partition suit. The Court held that due notice was issued to all parties, including the appellant, through an Advocate Commissioner, and no valid substantial question of law remained unanswered.
Second appeal dismissed; connected miscellaneous petition closed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 18.12.2017 PRONOUNCED ON: 04.01.2018
CORAM:
THE HON'BLE MR.JUSTICE T.RAVINDRAN
S.A. No.238 of 2001
C.Shanmugam ... Appellant/Appellant/2nd Respondent/Defendant Vs. 1.C.Kumarasamy Pillai ... 1st Respondent/1st Respondent / Petitioner/Plaintiff 2.Nagarajan 3.Dakshinamoorthi(Deceased) 4.Panchavarnam [Memo in USR No.9976 of 2017 dated 31.10.2017 filed in respect of the deceased third respondent is recorded vide order of this court dated 28.11.2017 in S.A.No.238 of 2001. The legal representatives of the deceased third respondent namely, RR2 and 4 are already on record.] ... Respondents 2-4/Respondents 2-4 /Respondents 3-5
Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and Decree made in A.S.No.181 of 1999 dated 19.07.2000 on the file of the Additional Sub-ordinate Judge's Court, Nagapattinam, confirming the fair and decreetal order for final decree for partition in I.A.No.1240 of 1987 in O.S.No.289 of 1984 dated 21.04.1999 on the file of the District Munsif's Court, Nagapattinam.
In this second appeal, challenge is made to the judgment and decree dated 19.07.2000 passed in A.S.No.181 of 1999 on the file Additional Sub-ordinate Court, Nagapattinam, confirming the
fair and decreetal order dated 21.04.1999 passed in I.A.No.1240 of 1987 in O.S.No.289 of 1984 on the file of the District Munsif Court, Nagapattinam.
3.I.A.No.1240 of 1987 has been preferred for passing final decree for allotting the plaintiff's 1/3 share in the suit properties.
4.According to the plaintiff's case, the suit in O.S.No.289 of 1984 laid for partition ended in a preliminary decree declaring the plaintiff's 1/3 share on 03.07.1987 and accordingly, for claiming the allotment of the said share, it is the case of the plaintiff that he has laid the present application.
5.The case of the respondents in brief is that inasmuch as the appeal preferred against the preliminary decree is still pending in A.S.No.1 of 1988 the present application for passing final decree is not maintainable and liable to be dismissed and further according to them, Chidambarampillai had executed a settlement deed dated 29.11.1973 gifting the suit properties in favour of Jothi Ramalingam and hence the plaintiff cannot claim any share in the suit properties and thus the petition is liable to be dismissed.
6.At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration.
(1)Whether the judgment and decree of the Courts below is sustainable in law on the teeth of a catena of judgment to the effect that the notice to be sent to the litigant on its Advocate reporting “no instruction” to the Court?
(2)Can a Civil court deal with final decree proceedings in a partition suit when admittedly no notice has been served on one of co-owners?
8.Two main issues are focused in this second appeal by the
defendants. One is that due notice has not been issued to the second defendant. However, on a perusal of the materials and the judgment and decree of the Courts below, it is seen that only after giving due notice to the parties concerned, the Advocate Commissioner has been appointed and it is further found that the Advocate Commissioner has also issued necessary notice to all the parties concerned before inspection of the properties and therefore the contention of the defendants that due notice has been issued to the second defendant as such, has been rightly rejected by the Courts below. It is found that the above said plea has been taken by the defendants only to delay the proceedings, one way or the other, hence, as such does not merit any acceptance.
9.After issuing due notice to the parties concerned, the Commissioner had been appointed in the matter for suggesting the mode of division, in consonance with the preliminary decree passed. It is further seen that the Advocate Commissioner so appointed had also issued notice to all the parties concerned and after the report having been submitted by the Advocate Commissioner, objections have been called for from the concerned parties, excepting the plaintiff, others have not preferred any objection to the report of the Advocate Commissioner. The Courts below have rightly found that even the objection of the plaintiff with reference to the value of trees does not merit acceptance, as the same is bereft of any valid material. It is further found that for adjusting the shares, the Courts below have directed the plaintiff to deposit a sum of Rs.4,270/- the excess value of the trees allotted to him. Therefore, it is found that, the Courts below have rightly rejected the contention of the second defendant that due notice has not been issued to him in the final decree proceedings and the same is not liable to be interfered with in any manner.
10.When the defendants have not made out any acceptable case that more palmyra trees are standing in the properties suggested to be allotted to the plaintiff, it is seen that the Courts below have rightly rejected the above said contention and accordingly held that no material defect is noted in the mode of division suggested by the Advocate Commissioner. It is seen that considering the number of palmyra saplings alloted to the shares of the respective parties, it is seen that there is no inequitable division of the properties concerned amongst the parties and therefore the findings of the Courts below allotting the 1/3 share of the plaintiff's share in the properties concerned, as determined by them, do not call for any interference.
11.In such view of this matter, it is found that due notice has been sent to all the parties including the second defendant
in the final decree proceedings and therefore the contention now raised that no due notice has been sent as such cannot be countenanced. No valid material is projected to sustain the substantial questions of law forumalted. Accordingly, the substantial questions of law formulated in the second appeal are answered against the second defendant/appellant.
Sd/-
Assistant Registrar(CS III)
//True copy//
Sub Assistant Registrar
mfa
To
1.The Additional Sub-ordinate Court,
Nagapattinam.
2.The District Munsif's Court,
Nagapattinam.
Copy TO
The Section Officer,
VR Section, High Court,
Madras.
+1cc to Mr.T.A.Shagulhameed, Advocate SR.No.621
S.A. No.238 of 2001 SSD(CO) GN(19/02/2018)
2 issues framed by the court
Whether a Civil Court can deal with final decree proceedings in a partition suit when no notice was served on one co-owner?
Whether the judgment and decree of the Courts below is sustainable despite the alleged lack of notice to one litigant?
1 provisions across 1 enactments
C. Shanmugam
C.Kumarasamy Pillai
Nagarajan
Dakshinamoorthi
Panchavarnam
T.Ravindran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
