Madras High CourtNabisha Begum vs Arumuga Thewar And Ors. on 5 February, 1973Equivalent citations: AIR1974MAD273, AIR 1974 MADRAS 273, 1987 MADLW 198 (1974) 1 MADLJ201, (1974) 1 MADLJ201JUDGMENT

 

  N.S. Ramaswami, J.1. The plaintiff, who lost before the trial court, the first appellate court as well as before Ramakrishnan J. in second appeal, is the appellant before us in this Letters Patent appeal. The suit is one for declaration and possession with future mesne profits in respect of certain lands which the plaintiff purchased from one Velayutham Pillai under the sale deed Ex. A-1, dated 25-7-1957. All the courts have held that the plaintiff's remedy, if any, is only a suit for general partition with an equity for having the suit properties allotted to the share of vendor Velayutham Pillai inasmuch as, on the date of sale, he was not the owner of the suit properties but only had a 1/3 share in the family properties including the suit properties and that the suit for possession of the specific properties should fail. The matter turns upon the effect of an order under O. XXXII, R. 12, C. P. Code, in a suit for partition in which a preliminary decree has already been passed, regarding the status of the members of the joint family. Whether the division in joint family status already brought about is nullified and the members restored to their status of joint family members by the order under Order XXXII, Rule 12,C.P.C. dismissing the suit (even though a preliminary decree for partition had already been passed), is the question.2. The facts are these: Velayutham Pillai, the vendor under Ex. A-1, in favour of the plaintiff, one Ambalavana Pillai and one Nelliappa Pillai are the sons of one Muthiah Pillai. The father Muthiah Pillai died in the year 1933. The three brothers admittedly were members of a joint Hindu family and the family owned several items of immovable properties. In 1941, when Nelliappa Pillai, one of the three brothers, was a minor, O. S. No. 35 of 1941, was filed on the of the Court of the Subordinate Judge, Tirunelveli, on behalf of the said minor Nelliappa Pillai by his uncle acting as his next friend. To this suit, the other two brothers, viz., Velayutham Pillai and Ambalavana Pillai, as well as Kanthimathi Ammal, the mother of the parties, had been impleaded as defendants. A preliminary decree for partition declaring that the minor plaintiff, viz., Nelliappa Pillai, and the other two brothers, Velayutham Pillai and Ambalavana Pillai, are each entitled to a 1/3 share in the various items of suit properties was passed. The preliminary decree also made certain provisions towards the maintenance of Kanthimathi Ammal, the mother of the parties. After the passing of the abovesaid preliminary decree but before any one applied for passing a final decree, Nellayappa Pillai, the minor plaintiff in the suit, attained majority. Then he filed I. A. 110 of 1944 in O.S. 35of 1941, under Order XXXII, Rule 12,C.P.C., electing to abandon the suit. Upon that, the court appears to have passed an order dismissing the suit. The said Nelliappa Pillai died in April 1945, leaving no widow or issue.3. Very many years after, i.e., in the year 1957, Kanthimathi Ammal, the mother of the parties, filed I. A. No. 278 of 1957 in the abovesaid suit for having the suit restored to file. By that time, Ambalavana Pillai, one of the three brothers, was not heard of for several years. It is stated that his whereabouts are not known since 1948. In I. A. No. 278 of 1957, Kanthimathi Ammal pleaded that on the death of Nelliappa Pillai in 1945, and on the civil death of Ambalayana Pillai, who was not heard of for a long number of years, their two shares had devolved on her and that the suit should be restored to file and a final decree passed giving her 2/3 share in the property, while the remaining 1/3 share should go to the only remaining son, Velayutham Pillai. This application, which was resisted by Velayutham Pillai, ultimately came to be dismissed mainly on the ground that the order in I. A. No. 110 of 1944, the application under Order XXXII, Rule 12,C.P.C., dismissing the suit had been passed in the presence of Kanthimathi Ammal, that the having been a party to the said proceedings, cannot now be heard to say that the suit should be restored, especially after the lapse of 12 of 13 years. The question whether there had been division in status between the three brothers, Velayutham Pillai, Ambalavana Pillai and Nalliappa Pillai, and whether on the death of Nalliappa Pillai and on the civil death of Ambalavana Pillai, their respective shares devolved on Kanthimathi Ammal, their mother, was not decided in I. A. No. 278 of 1957. That application was dismissed as aforesaid on 5-12-1958. It was in the meanwhile Velayutham Pillai executed Ex. A-1 dated 25-7-1957 in favour of the appellant before us.4. The plaintiff brought the suit O. S. No. 40 of 1960 on the file of the Court of the District Munsif, Tirunelveli, out of which the present appeal arises, inter alia, contending that there had been no division in the joint family status between the three brothers, Velayutham Pillai, Ambalavana Pillai and Nallyappa Pillai, and on the death of Nalliappa Pillai and on the civil death of Ambalavana Pillai, Velayutham Pillai got all the joint family properties by survivorship and that therefore he was entitled to covey good title to her in respect of the suit properties by executing Ex. A-1 dated 25-7-1957. The main contesting defendant is Kanthimathi Ammal who has been impleaded as the 4th defendant in the suit. The other three defendants (defendants 1 to 3) are the tenants under Kanthimathi Ammal. Several questions had been raised before the trial court, with which we are not now concerned. The trial court as well as the first appellate court held that Velayutham Pillai, the plaintiff's vendor, did not get all the joint family properties by survivorship as there had been division in status amongst the three brothers and that the shares of Nelliappa Pillai and Ambalavana Pillai had devolved on Kanthimathi Ammal, the mother, as she is the nearest heir. Before Ramakrishnan J. who heard the second appeal, two questions were urged, one regarding the effect of the order in I. A. 110 of 1944 filed by Nelliappa Pillai underOrder XXXII, Rule 12 C.P.C. and the second was regarding the effect of the order dismissing I. A. 278 of 1957, the application filed by Kanthimathi Ammal, for having O.S. 35of 1941, restored and a final decree passed therein. Regarding the second point, the contention had been that Kanthimathi Ammal is barred by the principle of res judicata from contending in the present suit that she became entitled to the shares of Nelliappa Pillai and Ambalavana Pillai inasmuch as her application to restore O.S. 35of 1941 had been dismissed. But this question of res judicata does not really arise because, as already seen, the court which dismissed I. A. 278 of 1957 did not decide the question of the division in status or otherwise between the three brothers and whether the shares of Nelliappa and Ambalavana devolved on their mother Kanthimathi Ammal or not. That question is not agitated before us. The only point that is raised, as we said earlier, is about the effect of the order passed in I. A. 110 of 1944 in O.S. 35of 1941.5. The contention of the learned counsel for the appellant is that as O.S. 35of 1941, the suit for partition, came to be dismissed on Nelliappa filing I. A. 110 of 1944 under Order XXXII, Rule 12,C.P.C., after he attained majority, the parties got restored to their original position, viz., that before filing of O.S. 35of 1941, and that therefore, Nelliappa and Ambalavana cannot be considered to be divided members when the former died and the latter is civilly dead. But this contention is wholly unacceptable. It is settled law that division in status amongst members of joint family takes place immediately on a coparcener declaring his unequivocal intention to separate and communicates the declaration to the other members. The very filing of a suit for partition would amount to such a declaration. In this regard, there is no distinction between a coparcener who is sui juris and a coparcener who is a minor and on whose behalf of next friend acts, except that such declaration is subject to the approval by court. In Pedasubbayya v. Akkamma, , their Lordships of the Supreme Court observe-"Now, the Hindu law makes no distinction between a major coparcener and a minor coparcener, so far as their rights to joint properties are concerned. A minor is, equally with a major, entitled to be suitably maintained out of the family properties, and at partition, his rights are precisely those of a major. Consistently with this position, it has long been settled that a suit for partition on behalf of minor coparcener is maintainable in the same manner as one filed by an adult coparcener, with this difference that when the plaintiff is a minor the court has to be satisfied that the action has been instituted for his benefit."Then at page 1049, their Lordships observe-"In our judgment, when the law permits a person interested in a minor to act on his behalf, any declaration to become divided made by him on behalf of the minor must be held to result in severance in status, subject only to the court deciding whether it is beneficial to the minor; and a suit instituted on his behalf, if found to be beneficial, must be held to bring about a division in status." The above decision has been followed and the point stressed by a Division Bench of this court inRamaswami Chettiar v. Roya Kuppa Chetti, , and it is enough to quote the relevant part in the headnote-"It is now well-settled that under the Hindu law, there is no distinction between a major coparcener and a minor coparcener so far as their rights in the joint family properties are concerned. As any other coparcener a minor coparcener too has a right, by a unilateral declaration on his part, to effect a division in status in the family so far as he is concerned, without effecting an actual partition. But as a minor cannot be held to have a volition of his own, a guardian or next friend acting on behalf of the minor is allowed to exercise such a volition subject to the condition that it is approved by the court as a safeguard to the minor's interest."In the present case, undoubtedly Nelliappa Pillai, who was then a minor, acting through his next friend filed the suit for partition viz., O.S. 35of 1941, and ultimately the court passed a preliminary decree in August 1942, by which the shares of the parties in the properties came to be declared. Admittedly the preliminary decree declared that each of the three brothers, viz., Nelliappa Pillai (the minor plaintiff in the suit), Velayutham Pillai and Ambalavana Pillai (defendants in the suit) is entitled to a 1/3 share in the family properties. This is on the court's finding that it was beneficial for the minor to be divided from his brothers. That means, the court has put its seal of approval to the declaration made by the next friend on behalf of the minor plaintiff. Undoubtedly, after the passing of the preliminary decree, there was no joint family status between the three brothers and the division in status dates back to the date of plaint. As a matter of fact, the learned counsel appearing for the appellant does not dispute the above position. But his contention is that because of the subsequent events it must be deemed that the joint family status between the three brothers came to be restored.6. The contention is that when the court, in allowing I. A. 110 of 1944 filed by Nelliappa Pillai under Order XXXII, Rule 12,C.P.C., (on his attaining majority) dismissed O.S. 35of 1941, the suit for partition, the parties got restored to their original position, i.e., the position prior to the filing of the suit, as according tot the learned counsel, the dismissal of the suit wiped out all the earlier proceeding including the preliminary decree. This contention is untenable. There is no question of the preliminary decree becoming non est as a result of the suit being dismissed under Order XXXII, Rule 12,C.P.C. We will quote the said rule-"1. A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application.2. Where he elects to proceed with the suit or application, he shall apply for an order discharging the next friend and for leave to proceed in his own name.3. The title of the suit or application shall in such case be corrected so as to read henceforth thus:--"A. B., late a minor, by C. D. his next friend, but now having attained majority."4. Where he elects to abandon the suit or application, he shall, if a sole plaintiff or sole applicant, apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant or opposite party or which may have been paid by his next friend.5. Any application under this rule may be made ex parte; but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without notice to the next friend."7. The order of dismissal made by the court on the erstwhile minor plaintiff abandoning the suit under Order XXXII, Rule 12,C.P.C., would only mean that all reliefs which had not been granted so far are negatived. It would certainly not mean that a decree which has already been passed granting certain reliefs is either set aside or become non est. Supposing the suit filed on behalf of the minor plaintiff does not contemplate passing of a preliminary decree at one stage and passing of a final decree at a later stage and the suit has been decreed and there is nothing more to be done in the suit, there would be no question of such a decree being wiped out by the minor, on attaining majority, filing an application under Order XXXII, Rule 12,C.P.C. Even in the present case, it a final decree had been passed before the minor plaintiff attained majority, there would be no question of the suit being dismissed under Order XXXII, Rule 12, having the effect of nullifying the decree. A decree once passed by a competent court can be set aside only in appeal or other modes known to law. A suit, which has already been decreed, cannot be dismissed thereby nullifying the decree. There is no difference between a preliminary decree and a final decree in this regard.8.Section 2, sub-sec. (2)C.P.C. defines 'decree' as 'the formal expression of an adjudication which, so far as regards the courts expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final". Therefore a preliminary decree is as much a decree as a final decree and, as far as the rights of parties conclusively determined by a preliminary decree, there is no going back unless the decree is set aside by some mode known to law. Surely Order XXXII, Rule 12,C.P.C. is not meant for setting aside a decree already passed. As we pointed out earlier, if in a suit, say for possession, decree has already been passed allowing the plaintiff's claim, the suit cannot be dismissed by the court which passed the decree, under Order XXXII, Rule 12,C.P.C. That provision would apply only with regard to a matter which has not already fructified into a decree.9. The learned counsel contends that as long as a final decree has not been passed, the suit for partition should be deemed to be pending and as the suit has not been disposed of the same can be effectively dismissed. It is no doubt true that a suit for partition would be completely disposed of only after a final decree is passed. Therefore, on the date on which I. A. 110 of 1944 was filed by Nelliappa, the suit was no doubt pending on the file of the court of the Subordinate Judge, Tiruchirapalli. But it should not be forgotten that the suit was not pending regarding all the questions that arose in the suit. The suit for partition having been filed by a minor copartner through his next friend, one of the questions that fell for determination by the court before passing of a preliminary decree was whether it was beneficial for the minor to separate from the other coparceners. That question has undoubtedly been finally decided by the court when it passed the preliminary decree. The question as to what share the respective parties are entitled has also been finally decided by the court when it passed the preliminary decree because admittedly the preliminary decree declares that each of the three brothers is entitled to 1/3 share. The definition of the word 'decree' makes it clear that a decree can be either preliminary or final and even preliminary decree is one which conclusively determines the rights of the parties with regard to certain matters in controversy in the suit. In Venkatareddy v. Pethireddy, , their Lordships of the Supreme Court point out that a preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. Therefore, if the suit was pending, it was so pending only for the determination of the remaining questions and not with regard to questions which had already been decided, which decision had merged into the preliminary decree. The order in I. A. 110 of 1944 dismissing the suit would in no way affect the preliminary decree which has already been passed.10. However, the learned counsel for the appellant, relying on certain observations of Venkataramana Rao J. in Ramarao v. Venkatasubbayya, AIR 1937 Mad 274, contends that by Nellayyappa electing to abandon the suit for partition as contemplated under Order XXXII, Rule 12,C.P.C., he must be deemed to have revoked the intention to separate and therefore continued to be an undivided member of the family. That was a case where the minor plaintiff, on whose behalf the suit for partition had been filed, elected to continue the suit and the question which fell for determination by Venkataramana Rao J. was whether the rights of the plaintiff are to be determined as on the date of the plaint or as on the date when he elected to continue the suit. In the course of the discussion, the learned Judge observed at page 276(column 2) and page 277(column 1):--"The ratio decidendi of the Full Bench on the other hand is intelligible; the exercise of the option by the guardian does effect a severance but the severance so to speak remains in stage of suspended animation till the court ratifies the act; the court takes upon itself the task of deciding that which the minor if he were an adult would have done himself, namely, whether it is beneficial or not to become separate; it is not a fresh expression of volition by the court. The volition was already expressed by the guardian on behalf of the minor; the court puts the seal of approval on it in the place of the minor and for him. It is open to the minor on attaining majority to elect to abandon or continue the suit. If he elects to continue, he adopts the act of the guardian and puts his own imprimatur on it and the court is no longer called upon to pronounce its opinion on it; the minor becomes separated from the date of plaint. And if he elects to abandon the suit the minor continues to be an undivided member of the family and he must be deemed to have revoked the intention to separate."The learned counsel for the appellant very much relies on the latter part of the above observation of Venkataramana Rao, J. Apart from the observation being in the nature of obiter, it certainly does not apply to a suit for partition, where a preliminary decree and already been passed. In a suit for partition, where the preliminary decree itself has not been passed, the position is that though the next friend, in filing the suit for partition, has made an unequivocal declaration on behalf of the minor to separate, that declaration has no become an effective declaration because the law says that such declaration is subject to approval by the court. Till a preliminary decree is passed, the stage of the court approving or disapproving of the declaration made by the next friend on behalf of the minor would not arise. In such a case, when the minor, who has by then attained majority, abandons the suit, the position would be similar to a case where the court holds (the minor plaintiff still continuing to be a minor even till the date of preliminary decree) that it is not in the interests of the minor to separate and refuses to grant a preliminary decree for partition. But that is not the position as far as the present case is concerned. Here the court has, in fact, set its seal of approval of the declaration made by the next friend of the minor to separate and that decision of the court has become final. Therefore the observations of Venkataramana Rao J. relied on by the learned counsel would not help him. In the present case, when Nelliappa filed I. A. 110 of 1944, it would certainly have been open to the other shares to press for a final decree. Needless to say that in a suit for partition there is no distinction between a plaintiff and a defendant who is also claiming a share. The preliminary decree had declared not only the share of Nelliappa but also that of Velayutham Pillai and Ambalavana Pillai. By Nelliappa, on attaining majority, saying that he was abandoning the suit, the rights of the other two sharers to have the properties divided by metes and bounds and getting a final decree in the same suit cannot be jeopardised.11. There is also the further question as to whether a coparcener who made the necessary declaration and brought about a severance in status can unilaterally withdraw the declaration and restore the parties to their original position.InRadhakrishna v. Satyanarayana, 1948-2 Mad LJ 331 = (AIR 1949 Mad 173), a Division Bench of this court points out that when once there is a division in a joint Hindu family, whether of status or property, there is no means of avoiding the result except by a reunion for which an agreement, express or implied, is always required. This decision also points out that a unilateral declaration of intention to divide by a member which is unequivocal and which is communicated to the other coparceners brings about a disruption or division of a status of a family and when once such a communication of intention is made, which has resulted in the severance of status, it is not open to the member concerned to nullify its effect so as to restore the family to its original joint status. It is further pointed out that the withdrawal of the unilateral act of declaration of intention to separate which had already resulted in a division in status cannot amount to an agreement to reunite.This decision has been referred to with approval by their Lordships of the Supreme Court in Puttorangamma v. Ranganna, . It is pointed out by their Lordships of the Supreme Court at page 1022 that when once a communication of the intention to separate is made, which has resulted in the severance of the joint family status, it is not thereafter open to the coparcener to nullify its effect so as to restore the family to its original joint status, though it is possible for the members of the family by a subsequent agreement, to reunite. It is made clear that the mere withdrawal of the unilateral declaration of the intention to separate which already had resulted in the division in status cannot amount to an agreement to reunite. Regarding this aspect, there can be no distinction between a declaration made by a coparcener who is sui juris and a declaration made by the next friend of a minor coparcener which has subsequently been approved by court in passing the preliminary decree.12. The result is, the appeal fails and the same is dismissed with costs.13. Appeal dismissed.