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Lalitha Vs Mrs.Jayalakshmi — Partition | Madras HC (2019)

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Madras HC
2019
Lalitha Vs Mrs.JayalakshmiLalitha v. Mrs.Jayalakshmi

Dismissed

Lalitha v. Mrs.Jayalakshmi

Madras HC20 Feb 2019CRP/563/2019

Case brief

AI extract

What is this about?

Single judge held that death of a defendant after preliminary decree does not abate the suit, relying on precedent. Court dismissed the revision petition against the lower court's order, finding the petitioners abused process by delaying proceedings after participating in intermediate steps.

What did the court decide?

Civil Revision Petition dismissed; connected Miscellaneous Petition closed; no order as to costs.

What the court decided

AI extract

Outcome

Civil Revision Petition dismissed; connected Miscellaneous Petition closed; no order as to costs.

Issue for consideration

Whether the death of a defendant after the passing of a preliminary decree but before the filing of final decree application results in abatement of the suit. +2 more

Detailed headnote1 paragraphs

Death of a party after the passing of a preliminary decree in a partition suit does not result in abatement of the suit. The final decree merely gives effect to rights determined in the preliminary decree. Consequently, no application needs to be filed within the limitation period under Articles 120 and 121 of the Limitation Act to implead legal heirs. The petition was dismissed as a misuse of process given the petitioners' long delay and prior participation in commission proceedings.

A compact analysis

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.

A

1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 20.02.2019

CORAM

THE HONOURABLE Ms. JUSTICE P.T. ASHA

C.R.P(PD).No.563 of 2019
&
C.M.P.No.3757 of 2019
1.Mrs.Lalitha
2.Mr.G.Murugan
3.G.Abirami
4.Ms.G.Vijayalakshmi ...Petitioners
Vs
1.Mrs.Jayalakshmi
2.Mrs.Yasodha
3.Mrs.Saraswathy
4.Mrs.Parvathy

5.Mr.G.Chandrasekaran ... Respondents

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Prayer: Civil Revision Petition is filed under Article 227 of Constitution of India against the order dated 12.11.2018 in I.A.No.16124 of 2017 in O.S.No.12140 of 1996 on the file of VII Assistant City Civil Court, Chennai.

For Petitioners : Mr.S.Jeyakumar For Respondents : Mr.M.Murugan ORDER The legal representatives of the 1^st defendant in the suit O.S.No.12140 of 1996 on the file of the VII Assistant City Civil Court, Chennai are the revision petitioners before this Court and they seek to challenge the order passed by the learned VII Assistant Judge dismissing the application filed by the revision petitioners to declare that the suit O.S.No.12140 of 1996 as abated. Before proceeding to dispose of the Civil Revision Petition it is necessary to briefly touch upon the filing of suit O.S.No.12140 of 1996 and the subsequent pleadings leading upto

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the filing of the impugned petition.

2.The Respondents 1 to 3 had filed the suit O.S.No.12140

of 1996 on the file of the VII Assistant City Civil Judge, Chennai

against one Govindharaj, the husband of the 1^st petitioner herein

and the father of petitioners 2 to 4 herein for a partition and

separate possession of their 1/6^th share in the suit property.

3.It is the case of the plaintiffs that the suit property belonged to their father K.Gopal who died intestate in the year

1994 leaving behind him surviving the respondents herein and

the said Govindaraj. Despite several requests to the petitioners

to partition the properties amicably and share the rental incomes there was no response from the brothers constraining the

plaintiffs namely respondents 1 to 3 herein to file the said suit.

4.Despite notice being served on defendants 1 and 2 they

had not chosen to appear before the Court and was set ex parte

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on 10.09.1998 and ex parte preliminary decree was passed. It is thereafter seen that the respondents 1 to 3 herein had approached their brothers to partition the properties as per the preliminary decree. The brothers kept delaying the partition and

meanwhile the 1^st defendant Govindaraj had died.

5.The respondents 1 to 3/plaintiffs had not filed a final

decree proceedings since the brothers had assured that they will workout an amicable settlement and this promise was also reiterated by the petitioners herein. The plaintiffs/respondents 1

to 3 herein realized that the brothers had no intention of complying with the preliminary decree.

6.The plaintiffs had taken out an application I.A.No.16076

of 2009 for impleading the respondents 2 to 5 herein as defendants 3 to 6 in the suit and I.A.No.16077 of 2009 for passing final decree in terms of the preliminary decree and I.A.No.16078 of 2009 for appointing an Advocate Commissioner

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to divide the suit property into six equal shares and allot one such share to each of the plaintiffs and thereafter to determine the mesne profits.

7.It is seen from the records that one Mr.K.G.Senthil Kumar had entered appearance for the 2^nd defendant/6^th respondent and Mr.K.Ramamoorthy had entered appearance on behalf of the respondents 3 to 6 in the interlocutory application who are the petitioners 1,3 and 4 herein and the 6^th respondent was set ex parte.

8.The Advocate Commissioner was appointed by an order dated 18.02.2010 in I.A.No.16078 of 2009. Pursuant to the warrant issued to her, the Advocate Commissioner had issued notice to the two counsels namely K.G.Senthil Kumar and K.Ramamoorthy informing them that she is intended to visit the suit property on 27.03.2010. The said notice has been received by the Counsel K.G.Senthil Kumar on 24.03.2010 and on behalf

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of K.Ramamoorthy on 25.03.2010 at 3.30pm.

9.From the evidence of proceedings dated 27.03.2010 it is seen that the Advocate Commissioner had gone to the suit property for inspection and inspection had commenced at

4.50pm. The 1^st , 2^nd and 4^th petitioner herein and the 6^th respondent were present . The notes of proceedings have also been signed by the counsels as well as the parties who are present at the time of inspection. Thereafter the Advocate Commissioner had also submitted her report on 20.08.2010 in which once again she has reiterated the presence of the petitioners 1, 2 and 4 herein and the 6^th respondent.

10.The Advocate Commissioner has clearly stated that the

plaintiffs were absent after the submission of the report since the Advocate Commissioner had opined that the scope of dividing the property was not possible without demolishing the property. The learned Judge had directed the parties to invoke provisions of the

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Partition Act for a sale of the suit properties since the petitioners herein had not entered appearance notice was directed to them for the hearing on 15.09.2016.

11.It is seen that on 28.09.2016 the petitioners have taken out an application in I.A.No.11663 of 2016 to condone the delay of 6,589 days in filing the application to set aside ex parte decree dated 10.09.1998 (nearly 18 years). In the said application they had contended that it was only when they received the notice dated 30.08.2016 asking them to appear before this Court on 15.09.2016 that they had come to know about the ex parte decree.

12.They would further contend that from a perusal of the suit records they had come to know that I.A.Nos.16076 to 16078 of 2009 had been allowed and that one K.Ramamoorthy had entered appearance on behalf of the 2^nd petitioner/6^th respondent herein. They have contended that the 2^nd petitioner

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had not engaged the service of the said K.Ramamoorthy and that the signature in the affidavit has been misused by the 2^nd petitioner/6^th respondent herein. Further in the very same affidavit the petitioner has contended that the services of the Advocate K.Ramamoorthy was acknowledged by his illiterate mother who could not read, right or understand English or Tamil

and that they were not informed about pendency of the suit or the stage of the suit.

13.The revision petitioners has also initiated proceedings

against the said K.Ramamoorthy by filing a complaint to the Bar Council of Tamil Nadu dated 16.11.2006, however, in the typed set of papers that have been enclosed by the revision petitioners there are two letters 08.10.2016 and 24.10.2016 addressed by

the 2^nd petitioner to the said K.Ramamoorthy Advocate. In these letters there is no statement made by the revision petitioners that they have not acknowledged the services of K.Ramamoorthy on the contrary the very opening sentence of the letter dated

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08.10.2016 is to the effect that the party was very much aware about the pendency of the suit for partition and the fact that the suit was adjourned to 21.10.2016.

12.Both these letters only request the counsel concerned to return back the entire papers and to give consent to the revision petitioners for engaging a new counsel. Thereafter over a year later the revision petitioners have come forward with the impugned interlocutory application namely I.A.No.16124 of 2017 seeking for dismissal of the suit O.S.No.12140 of 1996 on the

ground that the same has been abated as against the 1^st defendant.

13.They would submit that since no steps have been taken

to implead the legal heirs of the 1^st defendant who had died on 14.06.2002 within a prescribed time, the suit had to be dismissed as abated. The petitioners would contend that the suit could not be proceeded with as per the provisions of Section 5 read with

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Article 120 and 121 of the Limitation Act.

14.The respondents 1 to 4 had filed a detailed counter

wherein they relied upon the Judgments of the Honourable Supreme Court. They would contend that the suit has not been

abated as the 1^st defendant had died subsequent to the passing of the preliminary decree and before the filing of the application

in final decree the petitioners having been brought on record in the final decree proceedings, therefore there was no question of the suit having abated as against the deceased 1^st defendant. It is pertinent to mention that the petition I.A.No.11663 of 2016 to condone the delay of 6589 days is yet to be ordered.

15.The learned VII Assistant Judge by her order dated

12.11.2018 proceeded to dismiss the said application. The learned Judge after perusing the records held that the petitioners herein had entered appearance through their counsel and had

been set ex parte for not having filed their counter and therefore

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the contention that they came to know about the passing of the preliminary decree only on 15.09.2016 was totally false.

16.Challenging the said order the revision petitioners are before this Court. Heard the arguments of both counsels. It is seen from the records that the revision petitioners were aware about the ex parte decree even in the year 2010 since they had participated in the Advocate Commissioners proceedings on 27.03.2010. A cursory look at the signature in the notes of proceedings with the signature of the 2^nd petitioner in the affidavit would clearly show that they have participated in the proceedings of the Advocate commissioner on 27.03.2010 and thereafter kept quite and only on 15.09.2016 when the plaintiffs

were taking steps to bring the property to sale that they deemed it fit to enter appearance before the Court on allegation that the 2^nd petitioner had not engaged services of the Advocate K.Ramamoorthy and they were not aware of the proceeding.

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17.The fact that in the notice issued to Ramamoorthy the

petitioners have not accused him of appearing on their behalf without authority but only seeking his consent for changing the counsel and for returning the papers it is clearly evident that the

petitioners, particularly 2^nd petitioner had acknowledged the services of the said Ramamoorthy even on 26.11.2009 when the

affidavit was filed on behalf of the 2^nd respondent by the said Ramamoorthy in the present petition. The petitioners are seeking the dismissal of the suit as abated on the ground that the legal heirs of the deceased 1^st defendant have not been brought on record within the time stipulated in Section 5 read with Article

120, 121 of the Limitation Act.

18.The counsel for the respondent had relied on the

Judgement in Perumal Pillai Vs. Perumal Chetty and others reported in AIR 1928 Mad 914 wherein the Full Bench was

called upon to give its answer as to whether the death of a person after the preliminary decree and before filing the final

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decree would result in the suit being abated. The Full Bench had answered the reference by stating that the preliminary decree determines the right of the parties and final decree was only giving effect to the right and therefore there was no question of there being an abatement.

19.The Honourable Supreme Court in the Judgement in Ratna Alias Ratnavati (SMT) Vs. Syndicate Bank and others reported in (1995) 1 SCC 407 has also confirmed the above position and has held that there was no need to make application within a period of limitation as provided under Article 120 and 121 of the Limitation Act.

20.In the light of the above, I am of the considered view that the order of the learned VII Assistant City Civil Judge, Chennai does not suffer from any infirmity and the Civil Revision Petition is liable to be dismissed. The action of the petitioners is nothing but an abuse of process of Court since they had

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knowledge of the suit as early as in the year 2010 at least from when the Advocate Commissioner had visited the property but they had not taken any steps whatsoever to set aside the ex parte decree in the suit O.S.No.12140 of 2006. Without doing so they are attempting to somehow scuttle the decree holder's right

to enjoy the fruits of the decree by moving one petition after the
other.
In the above circumstances the Civil Revision Petition stand
dismissed. There shall be no order as to costs. Consequently,
connected Civil Miscellaneous Petition is also closed.
20.02.2019
kan
Index : Yes/No
Speaking order/non-speaking order
To,
The VII Assistant City Civil Judge,
Chennai

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P.T.ASHA, J.,

kan

C.R.P(PD).No.563 of 2019 &
C.M.P.No.3757 of 2019

20.02.2019

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Issues for consideration

3 issues framed by the court

AI extract

1.
Whether the death of a defendant after the passing of a preliminary decree but before the filing of final decree application results in abatement of the suit.
2.
Whether the petitioners, who were aware of the proceedings from 2010, acted bona fide in seeking to set aside an ex parte decree decades later.
3.
Whether the dismissal of an application to declare the suit abated due to non-impleadment of legal heirs was legally sustainable.

Cases cited

Colour shows how this judgement treated each authority

AI extract

Perumal Pillai Vs. Perumal Chetty and othersExplained¶89
AIR 1928 Mad 914 · Who else cites this
Ratna Alias Ratnavati (SMT) Vs. Syndicate Bank and othersReferred¶95
(1995) 1 SCC 407 · Who else cites this

Parties & counsel

AI extract

petitioner
Lalitha
petitioner
Murugan
petitioner
Abirami
petitioner
Vijayalakshmi
respondent
Jayalakshmi
respondent
Yasodha

Coram

AI extract

P.T. ASHA

Case details

As recorded by the court registry

Court: Madras HC
Decided on: 20 Feb 2019 · February
Registered: 13 Feb 2019
Case no.: CRP/563/2019
CNR: HCMA010188992019
Topic: Partition
Bench: P.t. Asha
Disposal: DISMISSED

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Cite this judgement

Lalitha v. Mrs.Jayalakshmi, CRP/563/2019 (MAD), decided on 20 February 2019.

The Madras High Court publishes no neutral citation for this judgement — cite it by case number and date of decision.

Cases cited2

Perumal Pillai Vs. Perumal Chetty and othersExplained¶89
Ratna Alias Ratnavati (SMT) Vs. Syndicate Bank and othersReferred¶95

Open Authorities

Bench / Coram

P.T. ASHA

Parties & counsel