G.K.Govindarajulu vs R.Alamelu on 16 July, 2008

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 16.07.2008 

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
AND
THE HONOURABLE MR.JUSTICE R.SUBBIAH

O.S.A.NOS.245 AND 246 OF 2005

			
G.K.Govindarajulu				..  Appellant in
								both the appeals


	Vs.


1.R.Alamelu
2.P.Ramathilakam
3.K.Gajalakshmi
4.G.Parthasarathy
5.G.Padmanabhan
6.G.Gopinath					.. Respondents in
								both the appeals
 	
	These O.S.As. have been preferred under Clause 15 of Letters Patent and under Order 36 Rule 11 of O.S. Rules against the order, dated 29.7.2003 made in application bearing D.Nos.468 of 2003 and 35962 of 2002 in C.S.No.162 of 1982.    
	For Appellant  : Mr.G.Kathirvelu

	For Respondents: Mr.S.D.N.Vimalanathan
					for RR1 to 3, 5 and 6
				  No appearance for R4 
	   
- - - - 

COMMON JUDGMENT

(The judgment of the Court was made by M.CHOCKALINGAM, J.)		
	These appeals challenge the order of learned Single Judge, dismissing the applications made by the appellant herein for appointment of Advocate Commissioner and for passing of final decree.
	2.The Court heard the learned counsel for the appellant and also the learned counsel for the respondents. 
	3.The appellant filed the above applications on the original side seeking appointment of Commissioner of Court in order to effect division of petition mentioned properties and also for passing of final decree. The allegations made in support of applications were that a suit was filed in C.S.No.162 of 1982 for partition and separate possession by the appellant/plaintiff, the suit was decreed on 28.10.1986, O.S.A. No.150 of 1987 was filed and there was a compromise arrived at between the parties and thus, the preliminary decree was modified on 23.12.1994. An application for final decree was filed by the appellant in A.No.3278 of 1997 and final decree was also passed on 13.1.1999, allotting separate shares to all the parties to the suit. It was further averred that as per the compromise, the first defendant Sundarammal was given separate share. It was also agreed in the compromise that she was to be in enjoyment of the property till her life time and thereafter, her share was to be divided between the plaintiff and the defendants 2 to 7. The said Sundarammal died on 27.3.2002 and hence the share of Sundarammal was to be divided and for that purpose, an application was filed for passing final decree in that regard. 
	4.At the filing stage itself, a query was raised and the matter was taken up for consideration. The learned Single Judge has passed an order, rejecting the applications and hence these appeals have arisen.
	5.The only question that would arise for consideration before this Court is whether the application seeking for passing final decree was maintainable.
	6.The only contention put forth by the learned counsel for the appellant before the original side and equally before this court is that after passing a preliminary decree, it was challenged in O.S.A.No.150 of 1987; that a compromise was entered into, where it was agreed that the share of the first defendant Sundarammal was to be under her enjoyment during her life time and thereafter, it was to be divided by the plaintiff and defendants 2 to 7; that subsequent to the compromise, a final decree application was filed and division of properties has taken place in respect of other shares and in respect of the share of the first defendant Sundarammal, there was no final decree passed and under these circumstances, final decree in respect of the same was sought for. The learned counsel has relied on the decision of this court reported in AIR 1991 MADRAS 307 (MURUGAN VS. CHIDAMBARAM PILLAI AND OTHERS), wherein this Court held that in a suit for partition, any number of final decrees can be passed. Under these circumstances, in the instant case, so long as final decree in respect of the share of Sundarammal was not made, it has got to be ordered. 

	7.The learned counsel for the respondents raised two contentions. Firstly, the suit for partition was finally disposed of by passing final decree and insofar as the share of Sundarammal, the first defendant, she executed a Will and that is the subject matter of probate proceedings in this Court and under these circumstances, the order of the learned Single Judge has got to be sustained. 

	8.The Court has paid its anxious consideration on the submissions made. In the instant case, admittedly, preliminary decree passed in C.S.No.162 of 1982 was appealed against in O.S.A.No.150 of 1987. By way of compromise decree, the original preliminary decree was modified, which would be binding on the parties. Even as per the averments made in the applications, it could be seen that it was the appellant, who filed the application No.3278 of 1997 for passing of final decree and accordingly, final decree came to be passed on 13.1.1999 and thereafter, the said Sundarammal died on 27.03.2002. Now, at this juncture, it is pertinent to point out that the said Sundarammal was given life interest and she was also a party to the said compromise. This Court is able to see that final decree was passed and as per the compromise decree, all the parties, namely the plaintiff and all the defendants have been allotted respective shares. It has got to be further added that the said Sundarammal was given a specific share as per the compromise entered into between the parties and thus, it came to her hands.  
	9.At this juncture, the contention put forth by the learned counsel for the appellant that so far as Sundarammal was concerned, it was agreed that after her life time, it must be divided among the plaintiff and the defendants 2 to 7 and hence final decree has got to be passed cannot be countenanced for the reason that Sundarammal was concerned, originally final decree was passed, whereby separate allotment was made and it came to her hands.  True it is, she was also a party to the compromise, whereby it was agreed that she must be in possession and enjoyment of the property till her life time and thereafter, it must be divided among the plaintiff and the defendants 2 to 7 equally and it did not mean that the suit was not finally disposed of.  So far as the contention put forth by the learned counsel for the respondents that she has executed a Will, which is the subject matter of probate proceedings is concerned, the Court is of the considered opinion that no comment has got to be made in that regard. The decision relied on by the learned counsel for the appellant, as referred to above, can be applied to a case where the suit was not finally disposed of. No dispute that any number of final decrees could be passed, so long as the suit was not finally disposed of. In the instant case, the suit has been finally disposed of. Hence no question of applying the said provision laid down by this Court would arise. 
	10.Further, the contention put forth by the learned counsel for the appellant is that the case was not finally disposed of and hence the application seeking for final decree has got to be maintained. This Court is unable to agree with the contention for the reasons that originally, there was a suit for partition and final decree application was filed and the same has also been ordered. According to the learned counsel for the appellant, no final decree came to be passed. In the instant case, it is not in controversy that pursuant to the preliminary decree, which culminated in a compromise before the appellate forum, subsequently final decree application was filed and the parties, by appointment of Commissioner, were to take their respective shares.  Now, what is sought for is the division of property of the first defendant Sundrammal. Further, the learned counsel for the appellant relied on a clause in the compromise, stating that the plaintiff and the defendants were to take their respective shares and insofar as the share of Sundarammal, the first defendant was concerned, it was to be divided equally by all the parties. Hence the compromise would be binding all the parties. 
	11.It is further to be pointed out that so far as division of Sundarammal's share is concerned, the cause of action for the plaintiff/appellant would arise only on the death of the lady, which has subsequently taken place in the year 2002. The cause of action for the earlier partition suit and the cause of action for getting division in Sundarammal's property is entirely different and the cause of action to get division of Sundarammal's property, as contended by the learned counsel for the appellant, is a new one, which cannot be inserted in the earlier suit for getting the relief and under these circumstances, the remedy has got to be worked out independently and separately.  Thus, the findings of the learned Single Judge that the case has been disposed of is correct, in the opinion of the Court. Under these circumstances, the learned Single Judge was perfectly correct in rejecting the applications. 
	12.In the result, these original side appeals fail and the same are dismissed. No costs.

							(M.C., J.) (R.P.S., J.)
								 16.07.2008
Index : Yes
Internet : Yes
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							M.CHOCKALINGAM, J.

AND

R.SUBBIAH, J.

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O.S.A.NOS.245 & 246/2005

16.07.2008