N BHOOPATHY Vs. SRINIVASA NAICKER

JUDGEMENT

(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 25-01-1985. 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.) THE learned counsel for the review petitioner referred to AIR 2003 SC 1754 (Chandramohan Ramchandra Patil V. Bapu Koyappa patil (dead) through L.Rs. and others), 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.".