Prayer: Civil Review Application filed against the decree and judgment passed in S.A No. 1276 of 1992 dated 04-07-2003 in confirmation with the decree and jugment dated 10-10-1998 made in O.S No. 88 of 1985 on the file of the District Munsif, Tiruvellore.
JUDGMENT
1. This Review Petition has been filed on the ground that the learned Judge while allowing the Second Appeal committed an error apparent by restricting the decision to the appealing party alone.
2. The seventh respondent, one K. Gajendran is the plaintiff. It is seen from the Court-notice papers that he was originally served on 22-03-2008. The private notice was left unclaimed. As regards the other respondents, the Court-notice has been served on RR1 to 7 and 9. R8 alone has not been served. R8 is Rajendran, who is the fifth defendant. R8 had not appeared either in the Second Appeal. It is now sought to be reviewed. Except for the appellant none appeared at the time of the Review Application, though the matter had been listed several times and therefore, we heard the learned counsel for the appellant and proceeded to deal with the matter. The facts of the matter are as follows:
One Deivanaiammal was the owner of the properties described in a Suit O.S No. 88 of 1985. She had three sons and two daughters. The plaintiff is the son of one Kuppusamy, who was the grandson of Deivanaiammal. Deivanaiammal executed a Will by which he divided her properties into two Schedules A and B. A Schedule property was allotted to her two daughters and B Schedule property was allotted to her sons. All of them had life estates without the power of alienation. The grandsons of Deivanaiammal also were allowed to enjoy the property in the same way and it is the children or the grandchildren who are the ultimate beneficiary. The Suit was filed alleging that the persons who had only life interest had alienated the property when they had no right to do so and the plaintiff, Gajendran filed the Suit, after the death of his father Kuppusamy by which the absolute estate came to him. According to the plaint, Kuppusamy died on 14-10-1982 and the Suit was filed on 25-1-1985. Written statements were filed by the first and fourth defendants resisting the Suit for partition inter alia on the ground that the Suit was barred by limitation and the fifth defendant filed the written statement supporting the plaintiff's case. The Trial Court dismissed the Suit with costs on the ground that the plaintiff had filed the Suit beyond three years of attaining majority and therefore, it was barred by limitation. The Trial Court held that any alienation by the father, without prior permission of the Court is not void but only voidable and therefore, such alienation must be set aside within three years of attaining majority. It is seen from Paragraph No. 18 of the Trial Court judgment that the plea of res judicata was also raised. But no finding appears to have been given regarding that, the Suit was dismissed only on the ground of limitation. The plaintiff, Gajendran filed A.S No. 104 of 1988. The Appellate Court held that the Suit was not barred by limitation, since they were void sales and therefore, when the Suit was filed within three years after the death of the father when the plaintiff's right to possession fructify, it was filed within time.
3. Against that, the first defendant filed Second Appeal No. 1276 of 1992. The learned Judge framed the following substantial questions of law:
“Whether the Lower Appellate Court is correct in decreeing the Suit even with respect to Item No. 2 measuring 5.04 acres though the plaintiff has not filed the Suit within three years from the date when he attained majority?”
4. Paragraph Nos. 6, 7 and 8 of the said judgment read as follows:
“6. So in this case, we have to see whether the plaintiff has voided the sale by filing the Suit within three years from the date he attains majority. In the Plaint, the plaintiff has stated that he was aged about 20 years. The Plaint was filed on 25-1-1985. But according to the first defendant, the plaintiff was aged about 25 years on the date of filing of the Suit and so, the Suit is barred by limitation.
7. The Trial Court after considering the oral evidence including the evidence of P.W.1, found that the plaintiff was aged more than 21 years at the time of filing of the Suit. The Lower Appellate Court has also not set aside the said finding, but proceeded only on the basis that the sale by a natural guardian is void one and so the question of setting aside the same by the plaintiff has not arisen. It is admitted before this Court that the said conclusion of the Lower Appellate Court cannot be sustained.
8. In view of the factual finding of the Courts below that the Suit was filed by the plaintiff after completion of 21 years, seeking partition without even seeking to set aside the sale is barred by limitation, in so far as it relates to Item No. 2 measuring 5.04 acres, which was sold to the first defendant under Ex.B1, this Court cannot go into the correctness of the same regarding the age of the plaintiff on the date of filing of the Suit. The Suit filed by the plaintiff with respect to the above property is hopelessly barred by limitation and so the learned District Munsif, Tiruvallur, is not correct in decreeing the Suit even with respect to the said property.”
The learned Judge, however, after coming to the conclusion that the Suit filed by the plaintiff is barred by limitation, restricted the relief in the Second Appeal only to item No. 2 with which the appellant was concerned and Paragraph No. 9 read as follows:
“9. In view of the above, the judgment and decree of the Lower Appellate Court is set aside only in so far as Item No. 2 measuring 5.04 acres sold under Ex-B1 dated 1-10-1973 to the first defendant is concerned.”
The submission is that, if this Second Appeal has been allowed on the ground that the Suit is barred by limitation, then no relief can be granted at all, in respect of any item of the suit property and it cannot be restricted to the appealing party alone, denying the same to the non-appealing defendants.
5. The learned counsel for the review petitioner referred to Chandramohan Ramchandra Patil v. Bapu Koyappa Patil (dead) through LRs. and others, 2003 (1) CTC 621: AIR 2003 SC 1754, which also was a case of partition. The Supreme Court held in the above case that, in a Suit for partition, plaintiff and defendants are parties of equal status and if the right of partition is recognized and upheld by the Court, merely because only some of the plaintiffs had appealed and not all, the Court was not powerless. The defence that the Suit was barred by limitation was not accepted and the Suit was decreed in its entirety on the Appeal filed by some of the plaintiffs. Therefore, the defendants contended before the Supreme Court, that the Appellate Court cannot grant relief to all the plaintiffs at the instance of only some of the plaintiffs. The Supreme Court held thus:
“15. In our opinion, therefore, the Appellate Court by invoking Order 41, Rule 4 read with Order 41, Rule 33 of the Code could grant relief even to the non-appealing plaintiffs and make an adverse order against all the defendants and in favour of all the plaintiffs. In such a situation, it is not open to urge on behalf of the defendants that the decree of dismissal of Suit passed by the Trial Court had become final inter se between the non-appealing plaintiffs and defendants.”
6. The learned counsel also referred to the judgment reported in Koksingh v. Smt Deokabai., AIR 1976 SC 634, the Supreme Court held thus,
“If an Appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the Court below, it may pass or make such further or other decree or order as the justice of the case may require. Thus under Order 41, Rule 33, the High Court is competent to pass a decree for the enforcement of a charge in favour of the respondent notwithstanding the fact that the respondent did not file any Appeal from the decree.”
7. While the proposition of law put forth by the learned counsel for the petitioner must be accepted, the petitioner cannot take the benefit of it because of the previous proceedings between them which commenced in O.S No. 290 of 1972. This was filed by the ninth respondent in this Review Petition viz., Ramachandran.
8. I have gone through all the pleadings and also the exhibits which have been produced in the typed set of papers including Exs-B9, A12, A13 and A15. The judgment of the Supreme Court cited supra would normally apply because there the Supreme Court held that if the Suit is held to be in time in an Appeal filed by some of the plaintiffs then that benefit should be given also to the non-appealing plaintiffs. But, in this case, there is a hurdle in view of the finding in the earlier Suit. In that the subject matter was this self-same document viz., the sale deed dated 30-3-1952. In the Appeal in the earlier Suit, the Appellate Court held that cancellation of the document was not necessary and the plaintiff in that Suit was given an undivided share in the property and possession was postponed till the life time of the second respondent who is none other than the father of the first respondent herein, Kuppusamy Naicker. Therefore, the present Suit filed for possession within three years from the date of Kuppusamy Naicker's death in so far as this property is concerned cannot be said to be out of time and the succeeding paragraphs reveal the same.
9. The Suit was filed by A. Ramachandran for a declaration that the sale deed dated 30-3-1952 is void and that the plaintiff is entitled to the suit property along with the defendants 3 and 4. The Suit was decreed and the sale deed dated 30-3-1952 was cancelled and a declaration was given that A. Ramachandran, the plaintiff was entitled to the suit property along with the defendants 3 and 4 and also that the defendants 1 and 2 who put the plaintiff in joint possession along with defendants 3 and 4. For the sake of clarification. The cause title is extracted as such:
O.S No. 290 of 1972
(Vacation Court, Chinglepet, O.S No. 19 of 1972)
Between
A. Ramachandran…..Plaintiff
1. A. Narayanasamy Naicker 2. M. Kuppuswamy Naicker 3. R. Rajendran 4. Minor K. Gajendran represented by Court Guardian and Advocate Thiru. N.C Sridharan appointed as per order on I.A No. 726 of 1972 dated 28-8-1972
…..Defendants
The first defendant is the father of the review petitioner herein. The second defendant is the father of the plaintiff in the present Suit viz., Gajendran, the third defendant is the brother of Gajendran and the fourth defendant is the plaintiff-Gajendran himself. The above Suit was for a declaration that the sale deed dated 30-3-1952 as void. It is that sale deed which is marked as Ex-B9 based on which the present review petitioner presses his title. The Trial Court in the above Suit granted a decree as prayed for and cancelled the sale deed and declared that the above plaintiff was entitled to joint possession that the above defendants 3 and 4 and that the above defendants 1 and 2 should handover possession to them. Against this, A.S No. 25 of 1974 was filed by the first defendant Narayanasamy Naicker, who is the father of the review petitioner. He died after the Appeal was filed and the legal representatives were brought on record including the review petitioner. The cause title in that Appeal is as follows:
A.S No. 25 of 1974
Between:
1. Narayanasami Naicker (died), aged 50, S/o. Arumugha Naicker 2. Jankiammal, aged 45 W/o. Narayanasami Naicker 3. Jaya, aged 30 W/o. Kandasami Naicker 4. Boopathy, aged 26 S/o. Narayanasami Naicker 5. Radha Ammal, aged 21 W/o. Palani Naicker 6. Seetha aged 19 W/o. Kishta naicker 7. Minor Arjunan, aged 16 8. Minor Mallika, aged 10 [7 and 8 are represented by Guardian mother Janakiammal] (Appellants 2 to 8 added as per order in I.A No. 324/1975 dated 6-10-1975) …..Appellants
1. A. Ramachandran, aged 33, S/o. Arumugha Naicker 2. M. Kuppusamy Naicker, aged 45, S/o. Murugesa Naicker 3. K. Rajendran, aged 20 S/o. Kuppusamy Naicker 4. Minor K. Gajendran, aged 11 S/o. Kuppusamy Naicker (Minor 4th respondent represented by Guardian N.C Sridharan) …..Respondents
It may be seen from this that the appellant above is the review petitioner herein; the second respondent is the father of the plaintiff herein and the fourth respondent is the plaintiff himself. In the Appeal, the Trial Court's decree was modified. The Appellate Court held that the sale deed is void and a prayer for cancellation is not necessary and also held that the question of possession will not arise as long as the second respondent is alive and therefore, declared the right to possession in future. Therefore, the relief granted by the Lower Court was restricted to the first respondent's title to the undivided half share in the property. The prayer for cancellation of the document was declared as not necessary and Paragraph No. 2 of the decree as per the Appellate Court was that the first respondent be and hereby is entitled for possession of the half share in the suit property only after life time of the second respondent/second defendant. Therefore, as per this judgment, the right to possession was postponed till the life time of Kuppusamy Naicker, the second respondent. This judgment has become final in so far as Boopathy, the review petitioner herein, who is the fourth appellant and Gajendran, the plaintiff herein who is the fourth respondent in the above Appeal. Therefore, the Suit for possession filed within three years after the death of the father is in time. Therefore, the benefit available to the appellant in the Second Appeal is not available to the review petitioner and once the hurdle of setting aside the sale no longer exists then it becomes a clear claim of partition and for that there is no limitation since the right to partition arise every day. Therefore, though the proposition is accepted, it does not come to the benefit of the review petitioner herein.
10. Therefore, while the principle which the learned counsel for the petitioner advanced is absolutely correct, on facts it will not apply to this case. Therefore, the Review Petition is dismissed.
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