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2025 DAILYLAW 8674 (MAD)

Nainar Thevar (died) v. M. Pushparaj(died)

2025-09-23

R Vijayakumar

body2025
JUDGMENT : R. VIJAYAKUMAR, J. 1. The 9 th defendant in a suit for partition has filed the present second appeal challenging the concurrent findings of the trial Court as well as the appellate Court. (A)Factual Matrix: 2.One Mr.M.Pushparaj as plaintiff has filed the said suit for partition claiming 1/12 th share in the suit schedule property. As per the plaint averments, the suit schedule properties were the absolute properties of the plaintiff's father namely Mariapushpam Nadar who passed away in the year 1970. He had left behind the plaintiff, the first defendant (wife of the deceased) and the defendants 2 to 8 who are the other legal heirs. After the death of Pushpam Nadar, the plaintiff and the defendants 1 to 8 became the co-owners of the plaint schedule Item Nos. 1 to 5 as per Indian Succession Act. The mother namely the first defendant had inherited 1/3 rd share and the siblings would be entitled to 1/12 th share each. Since the joint possession causes inconvenience and the defendants 3 to 8 are not coming forward to enter into a partition, the present suit for partition is being filed. 3.Further contended in the plaint that the defendants 1 and 2 have executed a void sale in favour of the defendants 9 to 15. The plaintiff is not a party to the said sale deed and therefore, the same is not binding upon him. Hence, he has prayed for partition of his 1/12 th share in the plaint schedule properties and for seeking separate possession. 4.Except defendants 3 to 7, 9 and 15, all the other defendants were set exparte. The defendants 3 to 7 have filed a written statement concurring with the plaint averments and submitted that they are ready to pay Court fee for their 1/12 th share. 5.The defendants 9 and 15 have filed a written statement contending that after the death of Mariapushpam Nadar, the first defendant had executed a settlement deed in favour of the second defendant on 30.06.1986 with regard to Item Nos.1 and 2 of the suit schedule properties. Thereafter, the 2 nd defendant has executed a sale deed in favour of the 9 th defendant on 30.01.1995. Since a survey number was wrongfully mentioned, a rectification deed was also executed by the 2 nd defendant. Thereafter, the 2 nd defendant has executed a sale deed in favour of the 9 th defendant on 30.01.1995. Since a survey number was wrongfully mentioned, a rectification deed was also executed by the 2 nd defendant. Thereafter, the 9 th defendant has executed a sale deed in favour of the defendants 10 to 14. In such circumstances, the defendants have prescribed title by adverse possession. 6.It was further contended by the 9 th defendant and the defendants 10 to 15 that they are in possession of the suit schedule properties. Therefore, the contention of the plaintiff that he is in joint possession is not legally sustainable. The properties were allotted to the share of the first defendant and she had executed a registered settlement deed in favour of her son and therefore, the suit for partition is not maintainable. 7.After examination of DW2, a memo was filed on the side of the plaintiff before the Court on 19.06.2001. It is submitted in the memo that as far as Item Nos. 1 and 2 are concerned, a settlement has been reached between the plaintiff and the defendants 4, 6, 7 and 9 outside the Court and therefore, the suit for partition against Item Nos.1 and 2 is not pressed. The memo is signed by the plaintiff as well as his counsel. It has also been signed by the counsels appearing for the defendants 4, 6, 7 and 9. The learned Trial Court has made an endorsement “Recorded” on 19.06.2001. 8.The trial Court has proceeded to consider the entire issue on merits, without taking into consideration the memo filed on behalf of the plaintiff on 19.06.2001 and had passed a preliminary decree granting 1/12 th share to the plaintiff with regard to all the properties. Challenging the same, the defendants 9 and 15 had preferred A.S.No.13 of 2003 before the First Additional Subordinate Court, Tirunelveli. The primary arguments of the appellants before the First Appellate Court was that after a memo has been filed by the plaintiff to the effect that he is not pressing the suit for partition with regard to Item Nos.1 and 2, the trial Court should not have passed a decree for partition with regard to those items also. The primary arguments of the appellants before the First Appellate Court was that after a memo has been filed by the plaintiff to the effect that he is not pressing the suit for partition with regard to Item Nos.1 and 2, the trial Court should not have passed a decree for partition with regard to those items also. 9.The First Appellate Court after going through the memo filed by the plaintiff, recorded a finding that no order has been passed by the trial Court on the said memo. It also recorded a fact that the respondents in the appeal are not agreeable for the said memo. It further recorded a finding that the said memo cannot be construed to be a compromise as contemplated under Order 23 of C.P.C. The parties have not filed an affidavit to record the compromise. Therefore, the memo said to have been filed on behalf of the plaintiff that they are not pressing the suit with regard to Item Nos.1 and 2 of the suit schedule properties is not a legally acceptable one. After recording such a finding, the First Appellate Court has proceeded to consider the appeal on merits and has dismissed the appeal confirming the judgment and decree of the trial Court. Challenging the said concurrent findings, the present second appeal has been filed. 10.The second appeal has been admitted on the following substantial questions of law. “1.Whether the Lower Appellate Court is right in stating that the memo filed for recording the compromise cannot be accepted over looking the fact that the memo is only to the effect abandoning the claim in respect of Item 1 and 2? 2.Whether the findings of the Courts below is vitiated by its failure to consider the evidence of D.W.3, D.W.4 and D.W.6 with reference to the oral family arrangements and enjoyment of the properties ever since the death of the original owner? (B).Submissions of the learned counsels appearing on either side: 11.The learned Senior Counsel appearing for the appellants submitted that the plaintiff and his counsel have filed a memo abandoning a part of the claim with regard to Item Nos.1 and 2 of the suit schedule properties. The said memo has been signed by his counsel also. The learned trial Judge has made an endorsement in the said memo that 'the memo is recorded'. The said memo has been signed by his counsel also. The learned trial Judge has made an endorsement in the said memo that 'the memo is recorded'. However, this memo was not brought to the notice of the trial Court at the time of arguments. The trial Court has erroneously proceeded to decree the suit with regard to all the properties. 12.Though this was brought to the notice of the First Appellate Court, the First Appellate Court was under a wrong impression that even for abandonment of a part of the claim over the suit schedule properties, an affidavit has to be filed by the plaintiff. The learned Senior Counsel had relied upon the Hon'ble Division Bench judgment of this Court reported in 2003-2-L.W.208 ( XS.Financial Services Ltd., and another Vs. N.Devendran and others) and contended that when the parties have expressed their intention while settling the dispute, it should only be proper to hold that the parties have understood that the compromise memo could be filed before the Court for passing decree in terms of the compromise. 13.The learned Senior Counsel had also relied upon a decision of this Court reported in (2007) 1 MLJ 257 ( Hawa Ummal vs. Mohammed Yousuff (deceased) and others) wherein it is held that the record of proceedings made by the Court is sacrosanct and the parties cannot dispute the correctness of the Court proceedings on record. According to the learned Senior Counsel, the memo filed by the plaintiff abandoning his right to seek partition over Item Nos.1 and 2 of the suit schedule properties has been accepted and it has been recorded by the trial Court. In such circumstances, neither the trial Court nor the First Appellate Court were right in granting a decree for partition with regard to Item Nos.1 and 2 of the suit schedule properties. 14.The learned Senior Counsel appearing for the appellants had further submitted that the deposition on the side of the defendants especially Defendants 3, 4 and 6 would clearly establish that they have admitted the existence of oral arrangement and enjoyment of the suit schedule properties after the death of the original owner. Therefore, the memo filed by the plaintiff abandoning his right over two of the items of the suit schedule properties is only part of the said arrangement. Therefore, the memo filed by the plaintiff abandoning his right over two of the items of the suit schedule properties is only part of the said arrangement. In such circumstances, the Courts below were not right in granting a decree over Item Nos.1 and 2 of the suit schedule properties also. 15.Per contra, the learned counsel appearing for the respondents submitted that unless a petition is filed as contemplated under Order 23 Rule 1 of C.P.C, the plaintiff could not be construed to have abandoned his claim to Item Nos.1 and 2 of the suit schedule properties. The plaintiff had not even filed an affidavit or compromise petition abandoning his right over those properties. The plaintiff also disputed the said document before the appellate Court. In a suit for partition, such an abandonment would not be permissible in the eye of law in view of the fact that it is likely to affect the rights of the other co-owners. He had further submitted that the trial Court as well as the appellate Court have thoroughly considered the oral and documentary evidence and arrived at a finding that the gift deed executed by the 1 st defendant in favour of the 2 nd defendant is not valid. Therefore, the sale deed executed by the defendants 1 and 2 on 13.01.1995 and 01.09.1995 are also invalid. Hence, he prayed for confirming the judgment and decree passed by the Courts below. 16.Heard both sides and perused the material records. (C)Discussion: 17.The only issue that arises for consideration is whether the memo filed on behalf of the plaintiff before the trial Court would be acceptable in the eye of law for abandoning his claim over Item Nos.1 and 2 of the suit schedule properties in the light of Order 23 Rule 1 of C.P.C.? 18.A perusal of the memo filed on behalf of the plaintiff before the trial Court reveals that the plaintiff has stated that he had reached an out of Court settlement with the defendants 4,6,7 and 9 and therefore, the suit for partition is not pressed as against Item Nos.1 and 2. The memo has been signed by the plaintiff as well as his counsel. The counsels appearing for the defendants 4, 6, 7 and 9 have also signed in the said memo. The learned Trial Judge has made an endorsement “Recorded” on 19.06.2001. The memo has been signed by the plaintiff as well as his counsel. The counsels appearing for the defendants 4, 6, 7 and 9 have also signed in the said memo. The learned Trial Judge has made an endorsement “Recorded” on 19.06.2001. 19.There are five items of the suit schedule properties and the memo relates only to 1 st and 2 nd items. The memo filed by the plaintiff was not brought to the notice of the trial Court. The trial Court had proceeded with the suit and has decided the same on merits. Before the First Appellate Court, the primary arguments on the side of the appellants was that, in view of memo filed by the plaintiff, the suit for partition as against Item Nos.1 and 2 should have been dismissed. 20.The First Appellate Court has rejected the submissions made on the side of the appellant primarily on the ground that the plaintiff has not filed any affidavit abandoning his claim over Item Nos.1 and 2 of the suit schedule properties. The memo cannot be considered to be in accordance with Order 23 Rule 1 of C.P.C. That apart, no order has been passed by the trial Court on the said memo. Based on the said findings, the First Appellate Court has rejected the arguments of the appellants and has proceeded to decide the appeal on merits. 21.Order 23 Rule 1 of C.P.C is extracted as follows: “Withdrawal and adjustment of suits: 1.Withdrawal of suit or abandonment of part of claim(1).At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. 22.A careful perusal of the above said provision would clearly reveal that the plaintiff is entitled to abandon the entire suit or a part of his claim at any time after the institution of the suit as against all the defendants or any of the defendants. The proviso to Order 23 Rule 1 of C.P.C deals with a case where a plaintiff is a minor. However, we are not concerned with the proviso in this case. The proviso to Order 23 Rule 1 of C.P.C deals with a case where a plaintiff is a minor. However, we are not concerned with the proviso in this case. 23.Order 23 Rule 1 of C.P.C speaks about abandonment of suit or part of the claim. However, Order 21 Rule 3 of C.P.C deals with satisfying the Court with regard to existence of certain circumstances for withdrawal of suit. Both operate on two different fields. As far as the abandonment is concerned, the plaintiff is entitled to abandon the suit against all or any of the defendants or part of his claim. It is an unilateral act on the part of the plaintiff. Mere intimation of abandonment to the Court is enough. Formal order from the Court is not necessary. Only when an formal order is required from the Court, an application has to be preferred. 24.Our High Court in a judgment reported in AIR 1946 Mad 126 ( Duggempudi Ramakrishna Reddi vs. Duggempudi Veerareddi and another) in Paragraph No.11 has held as follows: “11.....The plaintiff filed a memorandum stating that he gave up item 6 and the third defendant. That is certainly a relinquishment of a part of the claim so as to bring it within the Court-fee paid. It is not necessary to file an amendment petition. As stated by the Judges of the Allahabad High Court in Sah Ramchand v. Pannalal A.I.R. 1929 All. 308, it would have been better if an application for amendment had been filed, but as they said we must look to the substance of what was done and there is no doubt whatever that what the plaintiff asked was for an amendment of the plaint. But even otherwise I am of opinion that there is no necessity to formally apply for amendment of the plaint. A plaintiff has always a right to abandon a part of his claim and for abandonment it is not necessary to file an application for an amendment of the plaint. If he abandons a part of the claim, he has only to intimate the fact to the Court and the Court has only to note it on the plaint and there it ends.....” 25.Only in cases where the plaintiff seeks to withdraw the suit with liberty to file a fresh suit on the same subject matter or part of the claim, permission of the Court is necessary. In such circumstances, an application has to be filed by the plaintiff to satisfy the Court with regard to the existence of the ingredients as contemplated under Order 23 Rule 3 of C.P.C. The Court is empowered to either reject the application as a whole granting permission to the plaintiff to withdraw the suit with liberty to file a fresh or dismiss the application in entirety. 26.Though facts of the present case falls under Order 23 Rule 1 of C.P.C (abandonment), the First Appellate Court has misconstrued the same as falling under Order 23 Rule 3 of C.P.C relating to withdrawal of suit. Therefore, the findings of the First Appellate Court that a formal application and an order of the Court is required for taking into consideration an abandonment of a part of the claim, is not legally sustainable. 27.The issue can be viewed from another angle also. All the five items in the suit schedule property put together constitute 3.40 acres. As per the Indian Succession Act, the widow of the deceased would be entitled 1/3 rd share and the 2 nd defendant who has executed a sale deed in favour of the 9 th defendant would be entitled to 1/12 th share. If both these shares are put together, it is evident that the 1 st defendant and the 2 nd defendant would be entitled to alienate 5/12 th share which is equivalent to 1 acre and 40 cents. However under Ex.B2, only an extent of 1 acre and 14 cents have been alienated by the 2 nd defendant in favour of the 9 th defendant. Therefore, the alienation made by the defendants 1 and 2 have not exceeded their share in the suit schedule property. Item Nos.1,2,3 and 5 are located in the same village. They are punja lands. Therefore, there cannot be any dispute with regard to the valuation of the property also. 28.In view of the above said deliberations, the substantial questions of law are answered in favour of the appellants. Item Nos.1,2,3 and 5 are located in the same village. They are punja lands. Therefore, there cannot be any dispute with regard to the valuation of the property also. 28.In view of the above said deliberations, the substantial questions of law are answered in favour of the appellants. (D)Conclusion: 29(a).The first and second item of the suit schedule properties shall be allotted to the share of defendants 1 and 2 and in turn they may be allotted to the appellants on payment of requisite Court fee in the final decree proceeding; b)In case of any deficit to the share of the defendants 1 and 2, the same shall be adjusted in items 3 to 5; c)The plaintiff as well as the other sharers will be entitled to make their respective claims only in items 3 to 5. d)The plaintiff share of 1/12 (28 cents), shall be allotted out of items 3 to 5. e).The second appeal is partly allowed to the extent as stated above. No costs. Consequently, connected miscellaneous petitions are closed.