NAGOOR GANI ALIAS RAJAMANI Vs. GANDHI MEENAL

JUDGEMENT

(1.) C.R.P. Nos.2742, 2843 of 1986, 606 and 635 of 1987 are directed against the orders passed in I.A. Nos.11/85, 515 of 1984, 84 of 1985 and514 of 1984 respectively in O.S.No.161 of 1979 on the file of the Sub Court, Ramnad at Madurai, and C.R.P.Nos.4081 of 1986 and 151 of 1987 are directedagainst the orders passed in E.P.No. 11 of 1986 in O.S.No.161 of 1979 on the file of th said Court.

(2.) THESE revision petitions arise out of the proceedings relating to the estate of late Muthuramalinga Thevar who was one of the most popular leaders of Tamil Nadu who owned extensive movable and immovable properties situated in various villages in Ramanathapuram District. During his life time, he filed the suit in O.S.No.61 of 1929 on the file of the Subordinate Judge, Ramanathapuram at Madurai claiming a half share against his father. The 44th defendant in that suit was one Indrani Ammal who was born to the father of Muthuramalinga Thevar through oneNagammal. In the said suit, late Muthuramalinga Thevar questioned the marriage of Nagammal with his father. Since Nagammal died before suit, Indrani Ammal was impleaded as the 44th defendant in that suit. Ultimately, the marriage between Nagammal and the father of late Muthuramalinga Thevar was upheld and the gift deed executed by Muthuramalinga Thevar's father was also upheld. Subsequently, Muthuramalinga Thevar died in 1963. Late Muthuramalinga Thevar died as a bachelor. Subsequent to his death, two suits in O.S.Nos.l of 1964 and 9 of 1970 came to be filed in respect of his estate by third parties. But they were ultimately dismissed. In O.S.No.9 of 1970, the said Indrani Ammal was impleaded as the fifth defendant. Even though in the earlier proceedings, claims were made not he basis of a will alleged to have been executed by late Muthuramalinga Thevar, no decision was rendered on the question of succession to his estate.

(3.) IN R. Ramamurthi Iyer v. Raja V. Rajeswara Rao, A.I.R. 1973 S.C. 643, the petition suit was sought to be withdrawn under O.23, R.1, C.P.C. after one of the defendants made an application invoking the provisions of the Partition Act.IN those circumstances, the Supreme Court came to the conclusion that as soon as a shareholder applies for leave to buy at a valuation the share of the party asking for a sale under S.3 of the Partition Act, he obtains an advantage in that the Court is bound thereafter to order a valuation and proceed according to the provisions of the Partition Act. The Supreme Court proceeded on th basis that once the defendant had gained such an advantage,it was not open to one of the sharers to withdraw the suit in order to defeat the rights of the other sharers. These principles also will be of no help to the petitioners herein. IN Muthurala v. Chiranji Lal, A.I.R. 1962 Raj. 109, it was held that a plaintiff cannot be allowed to withdraw his suit so as to deprieve the defendant of any right that may have accrued to him and that a Court cannot allow a plaintiff without the consent of all the defendants to withdraw a suit in which a preliminary decree for dissolution of partnership and rendition of accounts has been passed. It was a case where the matter was referred to arbitration and at that stage the suit was sought to be withdrawn and, therefore, it has no relevance for the purpose of the present case.