IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 17.04.2008 CORAM THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR. JUSTICE M.VENUGOPAL O.S.A. NOS. 301 TO 303 OF 2007 V.K.John .. Appellant in all the appeals - Vs - W.S.Seetharam .. Respondent in OSA 301/07 1. Prema Chandrasekar 2. W.S.Seetharam .. Respondents in OSA 302/07 1. T.R.T.Thirumalvasi 2. W.S.Seetharam .. Respondents in OSA 303/07 Appeals filed against the order dated 24th Sept., 2007, passed by learned single Judge in Application Nos. 5707, 5857 and 5958 of 2007 in c.S. No.423 of 1995. For Appellant : Mr. Abraham Markose for M/s.King & Patridge For Respondents : Mr.Prakash Goklaney for R-1 in OSA 302/07 Mr. P.C.Harikumar for R-1 in OSA 303/07 Mr. W.S.Seetharam Party-in-Person COMMON JUDGMENT S.J.MUKHOPADHAYA, J.
All the three appeals having been preferred by common appellant against common order, they were heard together and disposed of by this common judgment.
2. The suit, C.S. No.423/95 was preferred by plaintiff, V.K.John (appellant herein) for partition by meets and bounds of the properties of Late Mrs.Elie John, situated at Nungambakkam, Chennai and Kodaikanal as described in Schedule ‘A’, ‘B’, ‘C’ and ‘D’ of the plaint. In the said suit, an application No.5707/07 was filed by appellant/plaintiff amending the relief claiming for the entire property. Two other applications were preferred, one by Prema Chandrasekar (Appln. No.5857/07) and another by T.R.T.Thirumalvasi (Appln. No.5958/07) for impleading them as proposed defendants.
3. Application No.5707/07 filed by the appellant/plaintiff amending the relief claiming the entire property on the ground that after the death of the defendant, Lilie John, the entire property devolved on him, was dismissed by learned Judge by impugned order dated 24th Sept., 2007, giving rise to O.S.A. No.301/07. The other two application Nos.5857 and 5958/07 were filed by the proposed defendants, they claimed property on the basis of their respective Will purported to have been executed by the deceased Appu John, who was the 1st defendant to the suit. The said applications having been allowed, the other two appeals, O.S.A. Nos.302 and 303/07 have been preferred by the plaintiff (appellant herein).
4. For proper appreciation of the claim, learned counsel for the appellant/plaintiff relied on the family tree of Mrs.Elie John, as given below :-
Mrs.Elie John (Decd.) Wife of Dr. V.K.John (Decd.)
K. John (alias Babu)
* eldest son
* deceased on 20.12.85
* married to Mary K.John
(alias Lucy deceased on
08.10.1989)
Leelie Seetharam
(2nd Defendant)
* Daughter
* Deceased on 24.04.01
* Married to one T.N.Kuriakose & Divorced
* Married again to one
W.S.Seetharam who left
her in 1965 and is now
the 3rd defendant
* Leelie issueless
Appu John
(1st Defendant)
* Youngest son
* Deceased on 28.07.07
* Unmarried and without
issues
* Survived by the plaintiff
V.K. John who is his
natural legal heir
V.K. John (alias Lulu)
(Plaintiff)
Son of K.John and
grandson of Elie John
5. At this stage, it is relevant to state that W.S.Seetharam, who was impleaded as 3rd defendant, appeared in person and disputed the aforesaid family tree to the extent where it is stated that Lilie Seetharam (2nd defendant), after second time marriage with W.S.Seetharam, left him in 1965. According to W.S.Seetharam, there was no separation between Lilie Seetharam and him and such statement that Lilie Seetharam left him (W.S.Seetharam) is incorrect.
6. Admittedly, the suit was preferred by the plaintiff (appellant herein) in 1995 claiming one-third share of the property. After the death of Lilie John, who died on 24th April, 2001, the plaintiff claimed for amendment, as according to him he was entitled for the half of the share after the death of Lilie John, who died without any heir. The said amendment was allowed earlier, but on an application, W.S.Seetharam was impleaded as 3rd defendant, who claimed to be the legal heir of Lilie John.
Appu John died on 28th July, 2007. It is only thereafter all the aforesaid three applications were preferred and all of them claimed Appu John’s share in their favour. The plaintiff, in his application No.5707/07 claimed the share of Appu John on the ground that he died unmarried without any issue and the plaintiff is the only legal heir and, thereby, he claimed for full share of the suit property.
7. In this regard, we have heard the learned counsel for the parties and W.S.Seetharam, 3rd defendant in person. It was accepted by learned counsel for the appellant/plaintiff that such prayer for amendment claiming full share of the property could not have been allowed in the partition suit, which will change the nature of the suit from a partition suit to a suit for declaration of title with regard to the suit property. In this background, learned counsel for the appellant/plaintiff submitted that the appellant may be permitted to withdraw O.S.A. No.301/07 keeping his right open to make such claim in the partition suit after determination of the share; that means, he may claim that he is entitled to the share of Appu John.
8. Having heard the learned counsel for the parties, while we are of the view that learned Judge, by impugned common order dated 24th Sept., 2007, rightly rejected application No.5707/07 as was filed by the appellant/plaintiff, which otherwise would have changed the nature of the suit, we allow the appellant to withdraw O.S.A. No.301/07 with liberty to make such claim in respect of share of Appu John, after determination of the share, subject to objection as may be raised by the defendants to the suit.
9. So far as O.S.A. No.s302 and 303/07 are concerned, learned counsel for the appellant/plaintiff submitted that both the applicants claimed their right under a Will purported to have been executed by Appu John. One Will is dated 29th April, 2002 in respect of the entire property bequeathed by Appu John in favour of Prema Chandrasekar and the other Will is dated 3rd June, 2007, in favour of T.R.T.Thirumalvasi. It was submitted that there cannot be two Wills executed by Appu John, that too, with regard to the total property when he had only one-third share. Further, according to counsel for the appellant/plaintiff, no such claim can be entertained nor determination can be made in a partition suit on the basis of the purported Wills as alleged to have been executed by him.
Learned counsel appearing on behalf of the proposed defendants, Prema Chandrasekar and Thirumalvasi, while reiterated their claim on the basis of the Wills alleged to have been executed by the deceased Appu John in their favour, submitted that even for securing a representation of the deceased Appu John in the suit, they should be allowed to contest the suit.
10. We have heard the learned counsel for the parties and noticed the rival submissions with respect to O.S.A. Nos.302 and 303/07.
We accept the submission that the partition suit cannot be converted as testamentary suit for determination of claim as made by one or other on the basis of any Wills, including Prema Chandrasekar and Thirumalvasi. To that extent they may not be a necessary party in the partition suit. However, as the deceased Appu John cannot be left undefended, to secure representation of said deceased Appu John, if proposed defendants have been impleaded, only for the purpose of defending the share of Appu John, we are of the view that no interference is called for against such order passed by learned Judge.
11. In the aforesaid background, while we are not inclined to grant relief as sought for in O.S.A. Nos.302 and 303/07, make it clear that the defendants, Prema Chandrasekar and Thirumalvasi, who have been impleaded, may take part in the suit to secure the representation of the deceased Appu John for determination of his share, but the court below cannot determine their claim in the partition suit in question, which otherwise is required to be determined in a testamentary suit.
Accordingly, O.S.A. No.301/07 is dismissed as withdrawn with liberty to the appellant/plaintiff as given above and O.S.A. Nos.302 and 303/07 are dismissed, but with aforesaid observation. However, in the facts and circumstances, there shall be no order as to costs.
(S.J.M.J.) (M.V.J.) 17.04.2008 Index : Yes Internet : Yes GLN To The Asst. Registrar (O.S.) High Court Madras. S.J.MUKHOPADHAYA, J. AND M.VENUGOPAL, J. GLN PRE-DELIVERY JUDGMENT IN O.S.A. NOS.301 TO 303 OF 2007 Pronounced on 17.04.2008