Dismissed

P. Poonkothai v. S Seetharaman

Madras HC10 Mar 2021A/4224/2013

Case brief

AI extract

What is this about?

The High Court rejected an application challenging a compromise decree in a partition suit. The court held there was no necessity to implead the applicant, who claimed under a specific respondent, as the settlement was between the sharers. It dismissed allegations of suppression and clarified that a clerical error in the cause list did not invalidate the decree.

What did the court decide?

None. The application to set aside the compromise decree dated 01.11.2012 was dismissed.

P. Poonkothai Vs S Seetharaman — Partition | Madras HC (2021)

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A.No.4224 of 2013 in CS.No.122 of 2008

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON :: PRONOUNCED ON ::
17.02.2021 10.03.2021
CORAM ::
THE HONOURABLE Ms. JUSTICE P.T. ASHA
A.No.4224 of 2013
in
CS.No.122 of 2008
P. Poonkothai
... Applicant
Vs.
1. S. Seetharaman
2. S. Vijayakumar
3. P. Srinivasan
4. D. Rukmani
5. D. Balachandran
6. R. Ravi
7. R. Jayachandran
8. R. Balachandran
9. R. Ramesh
10. Prabhavthi
11. R. Thilagavathi
12. R. Jalandari
13. R. Varalakshmi
14. R. Vathsaladevi
15. R. Ramadevi
16. Kamalakannan
17. Minor Haish
18. Isari Ganesh
19. Pichaimuthu
... Respondents

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https://www.mhc.tn.gov.in/judis/

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A.No.4224 of 2013 in CS.No.122 of 2008

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Prayer : Application filed to set aside the compromise decree dated 01.11.2012 in CS.No.122 of 2008.

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For Applicant : Mr. T.R. Rajagopalan, SC for Mr. M. Kamalanathan

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For Respondent : Mr. S. Rajasekhar

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ORDER

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The above application has been filed by the 14^th defendant in the suit, seeking to set aside the Compromise Decree dated 1.11.2012 in C.S.No.122 of 2008.

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A brief narration of the facts is essential for appreciating the point in issue.

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The respondents 1 to 4 herein had filed the suit, C.S.No.122 of 2008, seeking partition of their 3/8th share in the suit schedule properties.

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https://www.mhc.tn.gov.in/judis/

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A.No.4224 of 2013 in CS.No.122 of 2008

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The admitted case of the parties is that the property belonged

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to one Duraisami, the father of the first defendant and the fourth plaintiff. Respondents 5 to 12/Defendants 2 to 9 in the suit are the children of the deceased son Ramachandran and Respondents 1 to 3/plaintiffs 1 to 3 and respondents 13 to 16/defendants 10 to 13 are the legal representatives of deceased daughter Krishnaveni.

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The 5^th respondent/first defendant had filed a written

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statement together with a counter claim seeking partition of his 1/4th share in the suit schedule property. The respondents 6 to 12 had contested the suit. However, ultimately, the parties, namely the respondents 1 to 16 herein, had entered into a memorandum of compromise on 31.08.2012 in and by which the properties were partitioned and each sharer was alloted a distinct share in the property.

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The mode of division was also encapsulated in a sketch which

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was attached with the memorandum of compromise. This Court by

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https://www.mhc.tn.gov.in/judis/

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A.No.4224 of 2013 in CS.No.122 of 2008

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judgment dated 01.11.2012, was pleased to record the compromise and pass a decree in terms of the compromise.

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The applicant herein had been arrayed as the 14th defendant in the suit since she had purchased 1820 sq.ft. in the first item of the suit schedule property. The applicant and respondents 17 and 18/defendants 14 to 16 who were the agreement holders/purchasers of certain portions of the suit property were not parties to the memorandum of compromise.

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It is also to be mentioned that the applicant's daughter had originally entered into an agreement of sale deed 14.12.2004 with the fifth respondent in respect of the larger share in the first item of the suit schedule property. Thereafter, a portion of the property agreed to be sold was sold to the applicant vide a sale deed dated 12.05.2006. After the compromise decree was passed, the applicant's daughter had filed a suit in O.S.No.4523 of 2013 on the file of the XIX Additional City Civil Court, Chennai for specific performance. This suit was also

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https://www.mhc.tn.gov.in/judis/

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A.No.4224 of 2013 in CS.No.122 of 2008

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dismissed by a judgment and decree dated 07.11.2014, as against which, she had moved A.S.No.108 of 2015 before this Court.

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The applicant has filed this application simultaneously on the ground that the decree has been obtained by suppression and is an abuse of process of law. This allegation is made by the applicant on two grounds:

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a) That she was not made a party to the compromise and the sale in her favour has not been referred to.

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b) She is shown to be represented by one M.Balasubramaniam, Advocate, whereas her counsel is one M.Kamalanathan. On the date on which the compromise has been entered into she has not been represented.

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The defendants and plaintiffs have filed their respective

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counters in this application inter alia contending that the applicant has no locus standi to challenge the Memorandum of Compromise that was entered into between the sharers, since she herself is only a claimant

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https://www.mhc.tn.gov.in/judis/

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A.No.4224 of 2013 in CS.No.122 of 2008

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under one of the sharers, namely the fifth respondent. They would further submit that though a partition by metes and bound had not been entered into and specific and distinct shares alloted to parties, the applicant had entered into a sale deed to purchase a specified property with four boundaries without the same being allotted to the share of the 5^th respondent.

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The respondents would submit that the applicant was represented by her lawyer when the compromise had been recorded. They would also contend that there was no necessity to make her a party to the Compromise Memo since the settlement is only between

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the legal heirs of Duraisami and the applicant is only claiming under one of the sharers.

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Mr. T.R. Rajagopalan, learned Senior Counsel, appearing on

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behalf of Mr. M. Kamalanathan, learned counsel, for the applicant would contend that despite impleading the applicant as the 14th defendant in the suit, the plaintiffs and defendants 1 to 13 did not

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https://www.mhc.tn.gov.in/judis/

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A.No.4224 of 2013 in CS.No.122 of 2008

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choose to include her as a party to the compromise and no notice has been issued to her in this regard. That apart, on the date on which, the compromise was recorded by the Court, there was no representation on behalf of the applicant. Therefore, the entire compromise has to be set aside and the suit had to be heard afresh.

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Mr. Rajasekar, learned counsel appearing on behalf of the defendants would reiterate that the applicant is in no way concerned with the compromise since she is claiming under the fifth respondent and the fifth respondent has been alloted a share and from out of this, the applicant would be entitled to claim the extent that was sold to her. He would argue that the applicant on the date of the compromise decree was only entitled to an undivided share to an extent of 1870 sq.ft. since her vendor was only the owner of an undivided share in the properties. The parties had not partitioned the property on the day of the alleged agreement of sale and the date of the sale thereafter. Therefore, the first defendant had no right to sell the property describing four boundaries.

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https://www.mhc.tn.gov.in/judis/

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A.No.4224 of 2013 in CS.No.122 of 2008

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He would submit that the application is nothing but an abuse

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of process of law, since the same has been filed only at the behest of the applicant's daughter who had filed the suit for specific performance against the fifth respondent. The other respondents/defendants 1 to 13 have adopted the above arguments.

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Heard the counsel and perused the records.

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The applicant has challenged the compromise decree on the following grounds:

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a) She has not been made a party;

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M.Balasubramanian, whereas he is the counsel for the defendants 2 to 9; and

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c) her counsel had not appeared before this Court on the date on which the judgment, based on the Memo of Compromise, had been pronounced.

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https://www.mhc.tn.gov.in/judis/

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A.No.4224 of 2013 in CS.No.122 of 2008

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The applicant claims under the first defendant having purchased an extent of 1870 sq.ft. from him. The property in question admittedly belonged to late Duraisami and on his demise intestate, all his legal heirs are entitled to a share in the property. Further, the legal representatives of the said Duraisami had not partitioned the property by metes and bounds. The fifth respondent who was only having an undivided interest had entered into a sale deed with the applicant's daughter on 14.02.2004 with reference to an extent of 3270 sq.ft. in the suit schedule first item of property within four boundaries and out of this, 1820 sq.ft. has been sold to the applicant under a sale deed dated 12.05.2006, once again describing the property sold within the four boundaries. The fifth respondent's share has not been partitioned as on the date of the agreement and sale.

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A perusal of the Compromise Decree would indicate that the 5^th respondent has been allotted an extent of 2723 sq.ft. in Survey No. 98/2A3 besides additional extents in other survey numbers. It is in this

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https://www.mhc.tn.gov.in/judis/

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A.No.4224 of 2013 in CS.No.122 of 2008

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Survey Number that the 5^th respondent had sold an extent of 1820 sq.ft. to the applicant. Therefore, the applicant is entitled to be alloted the extent purchased by her within the share that has now been alloted to the 5^th respondent. Therefore, there is no necessity to include her as a party in the Compromise Memo. The next submission is that the counsel for the applicant did not have notice of the proceedings and had not appeared before the Court on the date on which the compromise was recorded. This Court had called for the cause list of the said date. A perusal of the cause list clearly indicates that the applicant's counsel's name had appeared in the list on the said date. Therefore, it is not correct to state that the applicant was not put on notice about the said Compromise or its being recorded by the Court. The mistake in the recording of the name is purely a clerical mistake and will not render the compromise and the decree passed thereon to be null and void.

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I do not find any suppression on the part of the respondents

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1 to 16 herein and no case has been made out by the applicant to set

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https://www.mhc.tn.gov.in/judis/

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A.No.4224 of 2013 in CS.No.122 of 2008

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aside the compromise decree dated 01.11.2012. The application is therefore dismissed. No costs.

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10.03.2021
Internet : Yes/No
Index :Yes/No
Speaking / Non-Speaking
mrn

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11/12

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A.No.4224 of 2013 in CS.No.122 of 2008

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P.T. ASHA. J,

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mrn

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Pre-Delivery order in
A.No.4224 of 2013
in
CS.No.122 of 2008
10.03.2021

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https://www.mhc.tn.gov.in/judis/

P. Poonkothai v. S Seetharaman

Case brief

What is this about?

What did the court decide?

P. Poonkothai v. S Seetharaman

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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