Murugesan v. Kathirkama

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Date of Reserving the Judgment Date of Pronouncing the Judgment

20.04.2023

08.06.2023 CORAM: THE HONOURABLE MR.JUSTICE C.SARAVANAN and C.M.P.(MD)Nos.897 and 2413 of 2023 C.R.P.(MD)No.186 of 2023:- Murugesan

... Petitioner vs. Kathirkama

... Respondent Prayer :- Civil Revision Petition is filed under Article 227 of the Constitution of India, against the proceedings in I.A.No.1 of 2022 in O.S.No.67 of 2004, on the file of the Additional Sub Court, Tenkasi, dated 22.12.2022. For Petitioner : Mr.T.S.R.Venkatramana Senior Counsel for Ms.V.Janaki Devi For Respondent : Mr.V.Meenakshisundaram C.R.P.(MD)No.500 of 2023:- Kathirkamar

... Petitioner vs.

1.Murugesan

2.Varadharajan Gomathinayagam Chettiyar (Died) Pappu Ammal (Died)

3.Mayilanantham

... Respondents Prayer :- Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 03.02.2023, passed in I.A.No.1 of 2023 in O.S.No.32 of 1997, on the file of the Principal Sub Court, Tenkasi. For Petitioner : Mr.V.Meenakshisundaram For R1 : Mr.T.S.R.Venkatramana Senior Counsel for Ms.V.Janaki Devi For R2 : No Appearance For R3 : Mr.S.Velrajan COMMON ORDER By this common order, both the Civil Revision Petitions have been disposed of.

2.In these Civil Revision Petitions, the respective petitioners have challenged the following fair and decreetal orders:- C.R.P.(MD)No.186 of 2023 C.R.P.(MD)No.500 of 2023 Name of the Petitioner:- Murugesan Name of the Petitioner:- Kathirkamar Fair and Decreetal order dated

22.12.2022, passed in I.A.No.1 of 2022 in O.S.No.67 of 2004 on the file of the Additional Sub-Court, Tenkasi. Fair and Decreetal order, dated

03.02.2023, in I.A.No.1 of 2023 in O.S.No.32 of 1997, on the file of the Principal Sub-Court, Tenkasi.

3.The petitioner in both the Civil Revision Petitions are the siblings and sons of Late.Gomathinayagam Chettiar. For the sake of convenience, the parties shall be referred by their name. O.S.No.32 of 1997 was filed by Murugesan against his father Late.Gomathinayagam Chettiar, two brothers (which includes the plaintiff in O.S.No. 67 of 2004 namely Kathirkamar) and against his mother and sister before the learned Principal Sub Judge, Tenkasi. O.S.No.32 of 1997 was filed to declare the suit schedule property as joint family property and to partition the suit schedule property claiming 1/4th share and for separate possession.

4.O.S.No.67 of 2004 was filed by Kathirkamar [who is the 3rd defendant in O.S.No.32 of 1997] against Murugesan [the plaintiff in O.S.No.32 of 1997] before the learned Additional Sub Judge, Tenkasi. O.S.No.67 of 2004 was filed for the relief of declaration of title; recovery of possession; damages; and mesne profit, claiming right under a registered Gift Deed dated 19.08.2002 executed by his father Late. Gomathinayagam Chettiar in respect of one of the properties, which is the subject matter of O.S.No.32 of 1997.

5.In the respective suits, Murugesan (the plaintiff in O.S.No.32 of 1997/ defendant in O.S.No.67 of 2004) filed the following Interim Applications. Original Suit No. Interim Application No. Relief Claimed O.S.No.32 of 1997 I.A.No.01 of 2023 To Amend the suit schedule property in the plaint and for including a trial for mesne profits. O.S.No.67 of 2004 I.A.No.01 of 2022 To Stay O.S.No.67 of 2004

6.The respective Courts below has allowed I.A.No.1 of 2023 and dismissed I.A.No.1 of 2022. Thus, both the brothers Murugesan and Kathirkamar are before this Court against the order in I.A.No.1 of 2022 and I.A.No.1 of 2023, respectively.

7.By the impugned order dated 03.02.2023, the learned Principal Sub Judge, Tenkasi, has allowed I.A.No.1 of 2023 in O.S.No.32 of 1997, filed under Order VI Rules 17 and 18 of C.P.C. for amending the suit schedule property in the plaint in the above suit and thereby, has allowed Murugesan [the plaintiff in O.S.No.32 of 1997 / defendant in O.S.No.67 of 2004 to mark additional documents and for including a trial for mesne profit. Aggrieved by the same, Kathirkamar [the third defendant in O.S.No.32 of 1997/plaintiff in O.S.No.67 of 2004] has filed C.R.P.(MD)No.500 of 2023.

8.By the impugned order dated 22.12.2022, the learned Additional Sub Judge, Thenkasi has dismissed I.A.No.01 of 2022 in O.S.No.67 of 2004 filed under section 10 of C.P.C to stay the suit in view of prior suit in O.S.No.32 of 1997. Aggrieved by the same, Murugesan [the plaintiff in O.S.No.32 of 1997 / defendant in O.S.No.67 of 2004 ] has filed C.R.P.(MD)No.186of 2023.

9.The operative portion of the impugned orders reads as follows:- I.A.No.1 of 2022 [C.R.P.(MD)No.186 of 2023] ''6. .... ,e;epiyapy; kpfTk; fhyk;fle;J ,t;tof;fpid Kbtpy;yh epiyf;F ,Oj;J nry;y toptif nra;Ak; tifapy; kDjhuH kDtpy; $wpAs;s fhuzq;fs; cs;sJ vd;W ,e;ePjpkd;wk; ,Wjp nra;tjhy;> kDjhuH kDtpy; $wpAs;s fhuzq;fs; nghWj;J ,e;j m.t.vz;.67/2004 tof;fpNyNa ,Wjp nra;a toptif cs;sJ vd;gjhy; kDjhuH kDtpy; $Wk; fhuzk; Vw;Gilajy;y vd;Wk; ,t;tof;fpid jil nra;tjw;F vt;tpj mbg;gil Kfhe;jpuKk; kDjhuH kDtpy; ,y;iy vd;gij fUj;jpy; nfhz;Lk; mry; tof;F 2004 vd;w epiyapy; tof;F epYitapy; ,Ue;J RkhH 20 Mz;Lfis neUq;Fk; jUthapy; cs;sij fUj;jpy; nfhz;Lk; th.rh.1 FWf;F tprhuiz epiyapy; cs;s epiyapy;> ,t;tof;fpid tpiue;J Kbf;f toptif cs;sJ vd;gij fUj;jpy; nfhz;Lk; kDjhuH/gpujpthjp th.rh.1id FWf;F tprhuiz nra;ahky; fhyk;flj;jp te;J m.t.vz;.32/1997 tof;fpid Fwpg;gpl;L $wpNa ,t;tof;fpid fhyk; jho;j;jp tUfpwhH vd;gij fUj;jpy;

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17.08.2001 Njjpapy; tof;fpid js;Sgb nra;J jPHg;G kw;Wk; jPHg;ghiz gpwg;gpf;fg;gl;Ls;sJ. mjw;F vjpuhf thjp jhf;fy; nra;j Nky;KiwaPl;L tof;F vz;.10/05 tof;fpy; khz;GkpF nrd;id caHePjpkd;w kJiu fpisapy; fle;j 27.07.2022 Njjpapy; gpwg;gpf;fg;gl;l jPhg;Giuapy;> ''that the judgment and decree dated 17.08.2001 made in O.S.No.32 of 1997 on the file of the Principal Subordinate Judge, Tenkasi, are set aside. that the suit is remitted back to the trial court to take evidence regarding the additional documents and if necessary, the appellant can also examine independent witnesses to prove that there are income from the family properties and there are sufficient income from the joint family nucleus and there was surplus income.'' vd Fwpg;gpl;Ls;sjpid ghprPyid nra;Ak;NghJ> cgajug;gpdHfSf;F $Ljy; Mtzq;fs; FwpaPL nra;tjw;Fk;> $Ljy; rhl;rpak; mspg;gjw;Fk; tof;fpil nrhj;jpid nghWj;j kj;jpa fhy tUkhdj;jpid nghWj;Jk; Gjpajhf kPz;Lk; tprhuiz nra;J khz;GkpF caHePjpkd;wk; jPHkhdpj;Js;sJ. vjpHkDjhuHfs; jhf;fy; nra;j vjpHciuapy; thjp kw;Wk; 2 Kjy; 5 gpujpthjpfs; 1k; gpujpthjpapd; thhpRfs;. 1k; gpujpthjp mtUf;Fg;

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ngUk;ghz;ikahd nrhj;Jf;fis 15.02.2002 Njjpapy; gjpT ngw;w capy; Mtzk; %yk; 3k; vjpHkDjhuUf;Fk;> 3k; vjpHkDjhuhpd; rNfhjuH 2k; gpujpthjpf;Fk; 3k; vjpHkDjhuhpd; rNfhjhpahd 5k; gpujpthjpf;Fk; ghj;jpag;gLj;jpf; nfhLj;Jtpl;lhH. 1k; gpujpthjp 06.03.2008y; fhyk; nrd;w gpwF capy; CH[pjj;jpw;F te;jJ vd;Wjhd; Fwpg;gpl;Ls;sdH. Nkw;gb capy; Mtzj;jpd; efy; jhf;fy; nra;ag;gl;Ls;sJ. Mf thjpf;F gpuhJ jgrpy; nrhj;jpy; 1/3 gq;Ff;F kj;jpa fhy tUkhdk; fpilf;fj;jf;fjh? jgrpy; nrhj;Jf;fs; $l;Lf; FLk;g tUkhdj;jpy; thq;fg;gl;ljh? thq;fg;gl;l nrhj;Jf;fs; $l;LilikahsHfSf;F nghJthf ghj;jpag;gl;ljh? 1k; gpujpthjp vOjp itj;jjhf nrhy;Yk; capy; Mtzk; cz;ikahdjh? 1k; gpujpthjp ,we;J tpl;ljhy; jgrpy; nrhj;jpy; thjpf;F 1/3 gq;F fpilf;fj;j;ffjh vd;gjpid jPHkhdpg;gjw;F kDjhuH kDtpy; NfhhpAs;s jpUj;jk;

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7.The precursor to the dispute in these proceedings is R.C.O.P.No.21 of 1996 and R.C.O.P.No.4 of 1998, filed before the Rent Controller, Tenkasi, by Late.Gomathinayagam Chettiar, to evict Murugesan [the Petitioner in C.R.P.

(MD)No.186 of 2023] who was running a electrical business in shop Nos.10-A and 10-B.

8.R.C.O.P.No.21 of 1996 and R.C.O.P.No.4 of 1998 filed by Late.Gomathinayagam Chettiar were dismissed. Murugesan [the Petitioner in C.R.P.

(MD)No.186 of 2023] filed O.S.No.32 of 1997 before the Principal Sub-Court, Tenkasi, to declare the suit schedule properties as joint family properties and to partition the suit schedule properties, numbering 11 claiming 1/4th share and for separate possession. It was stated that all these properties were purchased out of the joint nucleus fund of the joint family properties. The said suit was later dismissed by a judgment and decree, dated 17.08.2001 of the Trial Court namely, the Principal Sub-Court, Tenkasi.

9.Aggrieved by the same, Murugesan [the Petitioner in C.R.P.(MD)No.186 of 2023] filed A.S.(MD)No.10 of 2005, before this Court. This Court, by its judgment and decree, dated 27.07.2022, reversed the judgment and decree of the Trial Court, dated 17.08.2001, in O.S.No.32 of 1997. During the pendency of A.S.(MD)No.10 of 2005, Late.Gomathinayagam Chettiar died on 06.03.2008.

10.The operative portion of the judgment and decree, dated 27.07.2022, passed in A.S.(MD)No.10 of 2005 by this Court reads as under:- ''21.Considering the submission made by the learned counsel for the appellant and the oldness of the documents, the contention of the appellant is acceptable. Since the first respondent is the best person, who can speak about the documents though he was added as one of the respondents and he died only during the pendency of the appeal and till the disposal of the suit, he was alive but the first respondent did not bring these documents on record. Therefore, it also clearly shows that the documents were suppressed. Since the documents stand in the name of the first respondent and their ancestors, those documents are necessary to decide the case. Therefore, the contention regarding the reception of the additional evidence is accepted and the Civil Miscellaneous Petition in C.M.P(MD)No.3954 of 2017 is allowed. On the side of the appellant, during the trial, 11 documents were marked as Ex.A1 to A11. Hence, the family partition deed between the appellant's father and his brothers dated 08.07.1959 is marked as Ex.A12 and other documents stand in the name of the grandfather dated 08.01.1929 and 12.05.1993 are marked as Ex.A13 and A14. Therefore, they are marked as Ex.A12 to Ex.A14.

22.It is a well settled law that mere marking of documents will not serve any purpose and the witness has to speak about the documents. Though all the documents go to show that the ancestors are having certain properties and the appellant has to establish that there are income from those properties and there are sufficient nucleus and from the nucleus there was a surplus income and out of that amount, the first respondent has purchased the suit properties. Therefore, in order to establish that the documents marked as Ex.A12 to A14 had sufficient nucleus or income and out of the income, there was a surplus income and from the ancestral income or source the suit properties have been purchased, the suit is liable to be remitted back to the trial Court.

23.In the result, the judgment and decree dated 17.08.2001 made in O.S.No.32 of 1997 on the file of the Principal Subordinate Judge, Tenkasi, are set aside. The suit is remitted back to the trial Court to take evidence regarding the additional documents and if necessary, the appellant can also examine independent witnesses to prove that there are income from the family properties and there are sufficient income from the joint family nucleus and there was surplus income. The appellant is directed to take evidence regarding the additional documents to substantiate surplus income and after taking evidence on the appellant's side, the trial Court is directed to decide the suit afresh on its own merits. However, as the suit is pending from the year 1997, the said exercise shall be completed within three months from the date of receipt of a copy of this judgment. No costs. Accordingly, this Appeal Suit is allowed.''

11.During the interregnum, Kathirkamar [the Petitioner in C.R.P.(MD)No.500 of 2023] filed O.S.No.67 of 2004 for declaration; recovery of possession; damages; and mesne profits in respect of the property at Door Nos.10-A and 10-B, which were in possession of Murugesan [the Petitioner in C.R.P.(MD)No.186 of 2023/Plaintiff in O.S.No.32 of 1997] based on a registered Gift Deed dated 19.08.2002 executed in favour of Kathirkamar [the Petitioner in C.R.P.(MD)No.500 of 2023] by Late.Gomathinayagam Chettiar [the first defendant in O.S.No.32 of 1997/3rd Respondent in of A.S.(MD)No.10 of 2005]. The O.S.No.67 of 2004 is pending as on date.

12.The judgment and decree dated 27.07.2022, in A.S.(MD)No.10 of 2005 passed by this Court, led to filing of I.A.No.1 of 2023 in O.S.No.32 of 1997, for amending the plaint by Murugesan [the Petitioner in C.R.P.(MD)No.186 of 2023]. The Trial Court has allowed I.A.No.1 of 2023 in O.S.No.32 of 1997 on 03.02.2023 by amending the plaint and has thus, permitted the said petitioner to mark additional documents.

13.Murugesan [the Petitioner in C.R.P.(MD)No.500 of 2023 has thus, challenged the impugned order passed by the learned Principal Sub-Judge, Tenkasi, on 03.02.2023, allowing I.A.No.1 of 2023 in O.S.No.32 of 1997, for amending the plaint.

14.It is the specific case of Kathirkamar [the petitioner in C.R.P.(MD)No.500 of 2023] that the amendment that was sought for and allowed, vide the impugned order dated 03.02.2023 in I.A.No.1 of 2023 in O.S.No.32 of 1997 was beyond the scope of the remand order dated 27.07.2022 of this Court in A.S.(MD)No.10 of 2005.

15.It is further submitted that by the above amendment, Murugesan [the petitioner in C.R.P.(MD)No.186 of 2023] was seeking to alter the complexion of the suit by adding 9 other properties which never form part of the original suit in O.S.No.32 of 1997. It is further submitted that the scope of remand was specific to examine Exs.A.12, A.13 and A.14, which were marked before this Court in A.S.

(MD)No.10 of 2005 and to elucidate the evidence of the parties.

16.It is submitted that Murugesan [the Petitioner in C.R.P.(MD)No.186 of 2023/the Respondent in C.R.P.(MD)No.500 of 2023] had not obtained leave of the Court for amending the plaint and therefore, even on this count, the impugned order passed by the learned Principal Sub Judge, Tenkasi, in allowing the amendment, cannot be sustained and was required to be interfered with.

17.That apart, it is submitted that at the time of institution of the suit in O.S.No.32 of 1997, Murugesan's [the Petitioner in C.R.P.(MD)No.186 of 2023/ Plaintiff in O.S.No.32 of 1997] share in the suit properties has been declared as Rs.8,50,000/-. If these newer properties are added, the jurisdiction of the Court in O.S.No.32 of 1997 will get altered to the Additional District Court, Tenkasi.

18.The learned Senior Counsel appearing for Murugesan [the Petitioner in C.R.P.(MD)No.186 of 2023/respondent in C.R.P.(MD)No.500 of 2023] submits that it is on account of the documents, which were allowed to be marked, Murugesan [the Petitioner in C.R.P.(MD)No.186 of 2023/Respondent in C.R.P.(MD)No.500 of 2023] became aware of the other assets, which form part of Exs.A.12, A.13 and A.14 and marked before this Court in A.S.(MD)No.10 of 2005.

19.It is submitted that Kathirkamar [Petitioner in C.R.P.(MD)No.500 of 2023/ the third defendant in O.S.No.32 of 1997] ought to have produced all the documents before the Court, so that, the Court could come to a correct conclusion as to the extent of the properties that were to be partitioned, despite there was a suppression of fact by the defendants in O.S.No.32 of 1997 and it is only after verifying Exs.A.12, A.13 and A.14, Murugesan [the Petitioner in C.R.P.(MD)No.186 of 2023/Respondent in C.R.P.(MD)No.500 of 2023] became aware of the other properties.

¶20It is submitted that the properties are not new properties, which are sought to be included. However, the same are also necessarily to be pleaded. It is submitted that the amendment could be made only after marking of the documents namely, Exs.A.12, A.13 and A.14, as these documents were marked before this Court and it is only after remand, consequential amendments could be made.

21.It is submitted that the Trial Court, namely, the Additional Sub-Court, Tenkasi, has erred in dismissing the application filed under Section 10 of C.P.C. to stay the subsequent suit filed by Kathirkamar [the Petitioner in C.R.P.(MD)No.500 of 2023], as the dispute in both the suits are interconnected and that pending disposal of the earlier suit in O.S.No.32 of 1997, the subsequent suit has to be necessarily stayed.

22.Finally, the learned Senior Counsel submitted that the issues have to be decided by the Trial Court based on the evidence and additional written statement, if any, that may be filed by Kathirkamar [the Petitioner in C.R.P.(MD)No.500 of 2023/ Defendants in O.S.No.32 of 1997] and therefore, the cases can be tried together by transferring them to one Court.

23.By way of rejoinder, the learned counsel for Kathirkamar [the Petitioner in C.R.P.(MD)No.500 of 2023] submits that already Tr.O.P.No.48 of 2023 was filed before the Principal District Court, Tirunelveli and the same was dismissed on

08.04.2023. Therefore, the prayer for joint trial cannot be ordered.

24.It was further submitted that, in case this Court is inclined to uphold the order allowing amendments to the plaint, then, the jurisdiction of the Principal Sub Court O.S.No.32 of 1997 would stand ousted and the suit has to be transferred to the Additional District Court at Tenkasi, on account of the pecuniary jurisdiction and Murugesan [the Petitioner in C.R.P.(MD)No.186 of 2023 /Plaintiff in O.S.No.32 of 1997] will also have to pay the necessary deficit Court fee.

25.The learned counsel for Kathirkamar [the Petitioner in C.R.P.(MD)No.500 of 2023] further submits that in case the order is upheld, the connected suit in O.S.No.67 of 2004 has to be transferred along with O.S.No.32 of 1997 before the Additional District Court at Tenkasi.

26.I have considered the arguments advanced by the learned counsel on either side.

27.In my view, the challenge to the impugned order passed in I.A.No.1 of 2023, dated 03.02.2023 in O.S.No.32 of 1997, cannot be entertained. The learned Principal Subordinate Judge, Tenkasi, is bound to be liberal in entertaining the application for amendment of the plaint in O.S.No.32 of 1997. O.S.No.32 of 1997 which was dismissed by a judgment and decree dated 17.08.2001 by the learned Principal Subordinate Judge, Tenkasi, has been set aside by a judgment and decree dated 27.07.2022, passed by this Court in A.S.(MD)No.10 of 2005 and the case has been remitted back to the Trial Court to take evidence regarding the additional documents filed by the plaintiff in the said suit and if necessary, the plaintiff was given the right to examine independent witness to prove that the income from the family properties were sufficient to form a joint family nucleus and there was surplus income. What Murugesan [the Petitioner in C.R.P.(MD)No.186 of 2023/Plaintiff in O.S.No.32 of 1997] has done is that pursuant to the remand, he has sought to mark additional documents apart from those documents, which were produced before this Court in A.S.(MD)No.10 of 2005.

28.Murugesan [the Petitioner in C.R.P.(MD)No.186 of 2023/Plaintiff in O.S.No.32 of 1997] has filed application for amending the plaint to introduce the averments regarding the assets, which were purchased by the previous generations and therefore, they can also partitioned.

29.The Hon'ble Supreme Court in Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and others reported in 2018 (11) SCC 722, has held that the Courts have to be liberal in allowing the application for amendment.

30.In view of the above, the challenge to the impugned order dated

03.02.2023, passed in I.A.No.1 of 2023 in O.S.No.32 of 1997, has to fail and accordingly, C.R.P.(MD)No.500 of 2023 is liable to dismissed.

31.As far as C.R.P.(MD)No.186 of 2023, challenging the order dated

22.12.2022, passed in I.A.No.1 of 2022 in O.S.No.67 of 2004 is concerned, there is no merit.

32.Both the suits have to be tried simultaneously. O.S.No.67 of 2004 has been filed by Kathirkamar [the Petitioner in C.R.P.(MD)No.500 of 2023] for a declaration that he is entitled to enjoy the exclusive right over the property, which was settled in his favour by the respective petitioner's father Late.Gomathinayagam Chettiar, vide the settlement deed dated 19.08.2002 and the registered Will dated 15.02.2002.

33.The right of declaration sought in O.S.No.67 of 2004 necessarily has to be tried along with partition suit in O.S.No.32 of 1997. Consequently, the challenge to the impugned order dated 22.12.2022, in I.A.No.1 of 2022 in O.S.No.67 of 2004, has to fail. However, considering the fact that in view of the amendment to the plaint in O.S.No.32 of 1997, the suit has to be transferred to the Additional District Court, Tenkasi.

34.Since the order passed in I.A.No.1 of 2023 in O.S.No.32 of 1997, dated

03.02.2023, is affirmed by dismissing C.R.P.(MD)No.500 of 2023, the case can no longer be tried before the Principal Sub Court at Tenkasi. The case has to be necessarily transferred to the Additional District Court, Tenkasi. Consequently, O.S.No.32 of 1997 has to be transferred to Additional District Court, Tenkasi. Since O.S.No.67 of 2004 also arises in respect of the same property in O.S.No.32 of 1997, O.S.No.67 of 2004, which is pending before the Additional Sub Court, Tenkasi, is also directed to be transferred to the Additional District Court at Tenkasi.

¶35In the result, both the Civil Revision Petitions are dismissed. Both the suits are directed to be transferred to the Additional District Court, Tenkasi, for joint trial. Since the suits are of the year 1997 and 2004, the learned Additional District Judge, Tenkasi, shall endeavour to dispose the suits as expeditiously as possible, preferably, within a period of 15 months from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petitions are closed. NCC : Yes / No Index : Yes / No

08.06.2023 Internet : Yes / No smn2 To

1.The Additional District Judge, Tenkasi.

2.The Principal Sub Judge, Tenkasi.

3.The Additional Sub Judge, Tenkasi. C.SARAVANAN

, J.

smn2 PRE-DELIVERY COMMON ORDER MADE IN DATED : 08.06.2023