NABISHA BEGUM Vs. ARUMUGA THEVAR

JUDGEMENT

(1.) THIS appeal is filed by the plaintiff against the decree and judgment of the learned District Judge, Tirunelveli, in A. S. 345 of 1960, which confirmed the decree and judgment of the learned District Munsif in O. S. 40 of 1960. The prior facts so far as they are necessary for the disposal of this appeal are briefly the following. One Muthiah Pillai died in 1933, leaving behind his widow Kanthimathi ammal, the fourth defendant in the suit, three sons Veluyatha Pillai, Ambalavana pillai and Nelliappa Pillai and two daughters. With the daughters we are not concerned. In 1941, Nelliappa Pillai, who was a minor, sued through his uncle and next friend in O. S. 35 of 1941 on the file of the Sub Court, Tirunelveli, for partition of the joint family properties set out in the various schedules to the plaint in that suit and for accounts. In that suit, he impleaded his brothers Ambalavana pillai and Velayutha Pillai, his mother Kanthimathi Ammal and his sisters. The learned Subordinate Judge passed a preliminary decree for partition declaring that the minor plaintiff and his two brothers were each entitled to one-third share in the joint family properties. It was also declared in the preliminary decree that certain properties shown in Sch. I to the plaint in that suit and which were situated in Kodaganallur would be allotted to the mother Kanthimathi Ammal in lieu of her maintenance and the maintenance of a minor daughter until the time of the final decree. The quantum of maintenance payable to the mother and the daughter and the marriage and jewel expenses for the daughter were all reserved, to be considered at the time of the passing of the final decree. Subsequent to the passing of the preliminary decree minor Nelliappa Pillai came of age and his next friend was discharged in due course. Then, Nelliappa Pillai filed an application I. A. 110 of 1944 on 7-7-1944 under O. XXXII, Rule 12 C. P. C. praying that he might be permitted to withdraw the suit, and the learned Subordinate Judge of Tirunelveli, dismissed the suit O. S. 35 of 1941, as not pressed. This happened in 1944.

(2.) THIRTEEN years later, Kanthimathi Ammal filed I. A. 278 of 1957 before the learned Subordinate Judge, Tirunelveli under O. XXVI, Rules 13 and 14 C. P. C. , for restoring the partition suit to file and to appoint a Commissioner and divide the properties by metes and bounds as per the preliminary decree. She alleged that nelliappa Pillai had dies in 1945, unmarried, that Ambalavana Pillai, the second son, had not been heard of for the past ten years and that as a result, she was entitled to the two-third share of Nelliappa and Ambalavana, in the family properties, as the heir of her two sons. The third son Velayutha strenuously contested the application. He pleaded that the preliminary decree was not carried into effect and there was a re-union as the plaintiff had abandoned the suit and lived as a member of the joint family. He also pleaded that the order of the court passed on 6-7-1944, dismissing the suit on the application of Nellayyappa on attaining majority was binding on all the parties including Kanthimathi Ammal and she was precluded from filing the application. The learned Subordinate Judge in an elaborate order canvassed several authorities, in regard to the effect of an application of a minor on attainment of age praying for the dismissal of the suit filed under O. XXXII, Rule 12 C. P. C. But the court relied for its decision, however, on the fact that the dismissal of the suit on the minor's petition was binding on the mother, who was a party to it, and she could not treat it as a nullity. The court also commented on the long delay of 13 years in filing the petition, and therefore, held that the delay would also be a ground for rejecting the application.

(3.) THEREAFTER, Velayudham Pillai sold the properties mentioned in the schedule to the plaint in O. S. 40 of 1960, one of the items of the joint family properties, by a registered sale deed on 25-7-1957 to the plaintiff Nabisha Begum. The contention of the plaintiff was that Velayudha Pillai was entitled to ignore the prior partition suit filed at the instance of the minor, which had been dismissed in the circumstances mentioned above, and that he was the full owner of the property and that, therefore, the plaintiff got the full ownership under the alienation from velayutham. Kanthimathi Ammal was the 4th defendant, and she was the main contesting defendant, the other three defendants being only lessees. She attacked the sale deed as fraudulent and without proper consideration. The more important contention on her behalf was that the minor's prior suit O. S. 35 of 1941 in fact brought about a division in the status among the different members of the joint family, and there was no subsequent re-union among the members. As a result of this, the two-third share belonging to the deceased Nelliappa and Ambalavana, who is civilly dead devolved on her. Therefore, the relief of the plaintiff would be one for general partition in which plaintiff could claim only an equitable relief in regard to Velayutham's share in the plaint schedule property, but the present suit was not maintainable. Both the courts below upheld the plea of the 4th defendant and dismissed the suit as well as the appeal. Again, the plaintiff has filed this second appeal.