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Puzhavakkath Madathil Gopala Pattar's sons Subramanya Iyer and Anr. Vs. Puzhavakkath Madathil Gopal Pattar's sons Lakshmana Ayyar and Ors. (11.02.1949 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Case NumberSecond Appeal Nos. 1699 and 2118 of 1946
Judge
Reported inAIR1951Mad742
ActsCode of Civil Procedure (CPC) , 1908 - Sections 14 and 16
AppellantPuzhavakkath Madathil Gopala Pattar's sons Subramanya Iyer and Anr.
RespondentPuzhavakkath Madathil Gopal Pattar's sons Lakshmana Ayyar and Ors.
Appellant AdvocateK.V. Srinivasa Iyer and ;C.K. Viswanatha Iyer, Advs.
Respondent AdvocateK.P. Ramakrishna Iyer and ;C.K. Viswanath Iyer, Advs. for Resp No. 1699/46, ;K.V. Srinivasa Iyer and ;K.P. Ramakrishna Ayyar, Advs. for Resp in No. 2118/46
Cases ReferredRajangam Aiyar v. Rajangam Aiyar
Excerpt:
.....upon alleged inequality in value or right to compensation arising - out of partition of cochin properties adversely to plaintiff - matter not falling within jurisdiction of court - it is not open to court to go behind judgment of cochin court or enquire into any alleged inequality or any right to compensation in respect of division of cochin properties. - - there was an unsuccessful attempt on the part of deft 1 to modify the stipulations in ex. & which have since been exhibited, clearly decided, that the pltf failed to discharge an encumbrance subject to which alone he had taken the property, that its loss at the ct sale was not attributable to any negligence or fraud on the part of anybody & that in effecting a partition of the cochin properties according to the terms..........properties situated in the cochin state in the dist ct of trichur. a decree for partition of the cochin properties was passed by the dist j. who held that ex. xx being unregistered was inadmissible in evidence to affect immoveable properties. there was an appeal a. s. no. 115 of 1116 (m. e.) to the chief ct of cochin which finally decidedthat ex. xx was a valid & operative partition & a decree for partition of the cochin properties on the basis of ex. xx was passed. one of the items of the cochin property that had been allotted to the pltf under ex. xx was subject to a prior encumbrance of rs. 2500 & it had been sold away in execution of a decreeobtained by the encumbrancer during the pendency of the partition suit. the pltf claimed that he was entitled to be compensated for the loss.....
Judgment:

Viswanatha Sastri, J.

1. In order to understand the contentions of the several parties in these two second appeals the earlier history of this litigation has to be set out in brief outline. The suit out of which these second appeals arise was instituted as early as 12-2-1937 by the pltf. the youngest of 5 brothers, against his elder brothers for a partition of the family properties some of which are situated in India & some in Cochin State. The family was of a humble origin but later on, through the exertions of some of the brothers, acquired considerable landed properties. There was also a lucrative coffee hotel business carried on at Trichinopoly by some of the brothers. Misunderstandings arose between the brothers which resulted in a demand for partition by one of them on 8-9-1936. All the brothers then met together & after some deliberation settled their disputes in a way. On 15-9-1936 they entered into an agreement evidenced by Ex. XX to divide the properties in the manner set out therein. All of them signed the document presumably in token of their consent to its terms. Under Ex. XX the present deft 1, the eldest brother, got for his share certain lands situated in Cochin State which was subject to an encumorance of Rs. 3000 & certain lands & a house situated in Ottapalam. To the share of the second brother, the present deft 2, was allotted the coffee hotel business in Trichinopoly known as 'Bheema Central Lunch Home' with all its moveables & also certain lands & the family house in Ottapalam. The next two brothers defts 3 & 4, wereallotted another coffee hotel in Trichinopoly known as 'Central Cafe' with all its moveables but with the liability to redeem a pair of diamond ear-rings which had been pledged for Rs. 2500 apparently for the purposes of the business, & hand it back to deft 1. The pltf. the last of the brothers, was allotted a building & the remaining lands in Cochin State together with a sum of Rs. 1000 agreed to be paid to him for the value of certain jewels. The pltf was saddled with a liability to pay off a mtge for Rs. 2500 outstanding on the lands allotted to him in Cochin State. No provision was made in Ex. XX for the division of the moveables mentioned in Schedule B of the plaint or the outstandings specified in Schedule C. Ex. XX was left unregistered. It was however followed up by Ex. II dated 19-9-1936 signed by all the five brothers by which in accordance with the terms embodied in Ex. XX the coffee hotel known as The 'Bheema Central Lunch Home' with all its moveables valued at Rs. 4500 was transferred absolutely to the deft 2 & the coffee hotel known as the 'Central Cafe' with all its moveables valued at Rs. 10,000 was transferred to defts 3 & 4 absolutely. With regard to the remaining properties which were agreed under Ex. XX to be divided among the brothers, Ex. II recited that since the brothers were not in possession of the exact description, survey numbers & other details of the properties, they would draw up a formal document later on. There was an unsuccessful attempt on the part of deft 1 to modify the stipulations in Ex. XX & also some considerable delay in implementing the terms of Ex, XX by delivery of the properties allotted to the pltf which led to his present suit for partition from which these appeals have arisen.

2. The suit was numbered as O. S. No. 8 of 1938 & decided by the Subordinate Judge of Ottapalam who held that Ex. XX was not a final partition but only a tentative arrangement between the parties as regards partition; that it was inadmissible in evidence for want of registration; & allotments made under Ex. XX were unequal in value. He therefore decreed a general partition holding, however, that effect must be given to Ex. XX & Ex. II to this extent, namely, that the 'Bheema Central Lunch Home' should be allotted to the share of deft 2 & the 'Central Cafe' to the share of the defts 3 & 4. He also passed a preliminary decree with reference to the moveable properties & silver vessels of the family, the value of the silver vessels being fixed at Rs. 600 in the decree. He also directed that the entire family should pay deft 1 a sum of Rs. 2500 for the value of his diamond ear-rings & a sum of Rs. 1000 to the pltf for ornaments. Against this decision of the Subordinate Judge, there was an appeal & a cross-appeal to the Dist J. of South Malabar who held that Ex. XX was a valid & operative partition; that there was no satisfactory evidence to show that the partition was grossly unfair; that even if there was some inequality in the partition, the same had been accepted by all the brothers; & that the decree given by the Subordinate Judge for partition of the immoveable properties ignoring Ex. XX should be set aside. He fixed the value of the silver vessels to be divided among the brothers at Rs. 1200 & confirmed the decree of the Subordinate Judge with respect to other moveables & outstanding. The judgment of the Dist J. was appealed against to the H. C. in s. A. No. 1000 of 1943 at the instance of defts 3 & 4 who felt that the value of the property allotted to them was far too low when compared with the value of the property allotted to defts 1 & 2, a matter on which theSubordinate Judge had expressed himself in their favour. The pltf & deft 1 each filed a memorandum of cross-objections in the H. C.

3. I now turn to another litigation between the same parties in the Cts of the Cochin State. 'The youngest of the five brothers as pltf instituted O. S. No. 120 of 1112 (M. E.) for partition of the family properties situated in the Cochin State in the Dist Ct of Trichur. A decree for partition of the Cochin properties was passed by the Dist J. who held that Ex. XX being unregistered was inadmissible in evidence to affect immoveable properties. There was an appeal A. S. No. 115 of 1116 (M. E.) to the Chief Ct of Cochin which finally decidedthat Ex. XX was a valid & operative partition & a decree for partition of the Cochin properties on the basis of Ex. XX was passed. One of the items of the Cochin property that had been allotted to the pltf under Ex. XX was subject to a prior encumbrance of Rs. 2500 & it had been sold away in execution of a decreeobtained by the encumbrancer during the pendency of the partition suit. The pltf claimed that he was entitled to be compensated for the loss of this item by his brothers, especially deft 1 due to whose manoeuvres, it was alleged, that the encumbrancer had brought the property to sale & the pltf had been deprived of all means of redeeming the property. The Chief Ct of Cochin, however, held that the property hadbeen lost to the family without any fault or negligence on the part of anybody & there wastherefore no ground for making the other brothers pay any compensation to the pltf in respect of the loss of the property by the Ct sale. Thus ended the litigation regarding the partition of the Cochin properties.

4. I now return to S. A. No. 1000 of 1943 & the memorandum of cross-objections filed therein. Pending the second appeal, four of the brothers, defts 1 to 4 filed a memorandum of compromise into this Ct on 28-8-1944 & on the same day a decree was passed in terms of the memorandum as between the parties to it. The youngest brother, the pltf in the action, was not, a party to the compromise. Since the decision of the present appeal turns upon the effect to be given to the memorandum of com-promise, I set out its terms hereunder:

'Memorandum of agreement between defts 1, 2, 3 & 4:

1. The decree of the lower appellate Ct as regards the allotment of properties to these parties is to stand so far as they are concerned.

2. The defts 3 & 4 give up their claim for the silver vessels referred to in para (2) of the lower appellate Ct decree--deft 1 gives up his claim for the earring Rs. 2500 decreed to him in para V of first Ct decree & confirmed by lower appellate Ct;

3. Each party to bear his own costs throughout.

4. In other respects the decree of the lower appellate Ct will stand..........'

As the pltf was not a party to the compromise or the decree which followed upon it thesecond appeal was heard & decided on themerits as regards the pltf by Somayya J. on8-9-1944. The controversy in the presentsecond appeal has turned upon the effect of thecompromise set out above in the light of thejudgment of Somayya J. The admissibility ofthe unregistered arrangement, Ex. XX, for thepurpose of affecting the immoveable propertiesdealt with thereunder was the subject of a sharpdifference of opinion between the two lowerCts & was debated again before Somayya J.who, however, did not give a decision on thequestion, for reasons which may be set out inhis own words:

'The admissibility in evidence of Ex. XXwhich was not registered has been very muchcanvassed, but in view of further investigationit is not necessary to decide this question. Wefind that most of the valuable British Indianproperties covered by Ex. XX namely, the Trichincpoly coffee hotels, have been the subjectof Ex. II, a registered deed & that all theCochin properties have been divided by thedecrees of the Cochin Cts. The propertieswhich will be affected by the argument thatEx. XX is inadmissible are these:

1. A paddy field allotted to deft 1 (unnecessary description omitted)

2. A house allotted to deft 2.

3. Certain dry fields allotted to defts 8 ft 4. The parties have agreed that, if possible, the properties just mentioned as having been allotted to defts 1 & 2 & defts 3 & 4 may be allotted to their share. Even taking that Ex. XX is admissible in evidence, it does not say that the inequalities in value were not to be adjusted later on. The view of the trial Or appears to be right & the appellate Ct has really given no reasons for coming to a different conclusion. I hold that the inequalities in the value of the properties allotted must be adjusted.'

Dealing with the pltf's claim for compensation or adjustment in respect of the Cochin properties, Somayya J. observed as follows:

'His (pltf's) grievance, therefore, is that owing to the default of deft 1 he has lost a major portion of the property that was allotted to him under Ex. XX. If this property had been situated in British India, the rights & liabilities of the parties could be adjusted, but we do not know whether this grievance of the pltf, which appears to be the real grievance, was also the subject of the decision by the Cochin Cts & we do not know how the Cochin Cts have dealt with the question.

As regards the division of the Cochin proper-ties, the parties are bound by the decree of the Cts of Cochin to which they were all parties. We have further to see whether, as regards the Cochin properties the Cts have adjusted the inequalities, if any in the properties allotted to the various sharers.'

The decretal portion of the judgment was in these terms:

'The decree of the lower appellate Ct is modified to the extent indicated above & the appeal remanded for disposal according to law in the light of the above observations. The compromise between the defts inter se will stand.'

5. After the remand, defts 3 & 4 contended before the lower appellate Ct that the inequslities in the value of immoveable properties allotted to the parties under Ex. XX should be enquired into & adjusted. The learned Dist J., at the further hearing, negatived this contention & held that it was only as regards the pltf, the difference between the value of the immoveable properties actually allotted to him & his legitimate one fifth share had to be adjusted. He held that the compromise filed in this Ct precluded any consideration of the alleged inequality 'inter se' among the defts. Against this part of the judgment of the learned Dist J., defts 3 & 4 have preferred S. A. No. 1699 of 1946. The learned Dist J. further held that the pltf had to be compensated for the loss of a portion of Cochin property allotted to him under Ex. XX as a result of the execution sale, following a mtge decree as already stated. Against this part of the judgment of the lower appellate Ct deft 1 has preferred S. A. No. 2118 of 1946. The learned Dist J. held that the value of the silver vessels must be fixed at Rs. 600 & not at Rs. 1200 as fixed by his predecessor. He gave no direction as regards the pltf's claim for mesne profits which had been allowed by the Sub Ct but disallowed by the Dist J. on the previous occasion. In respect of these two matters the pltf has preferred a memorandum of cross-objections in S. A. No. 2118 of 1946.

6. (After further discussing the facts of the case in S. A. 1699/46 his Lordship proceeded) : I now proceed to consider S. A. No. 2118 of 1946. The lower appellate Ct held that the pltf was entitled to be compensated for the loss of a portion of the property allotted to him by Ex. XX in the Cochin State by reason of the Ct sale which followed a decree in a suit to enforce a mtge on the property. Mr. K.P. Ramakrishna Aiyar for the pltf-resp states that though the pltf was bound to pay Rs. 2500 charged on the property allotted to him in Cochin, the property was lost as a result of a Ct sale because the pltf had not been put in possession of funds by deft 1 for averting the sale. He states that the real value of the property lost by the Ct sale was Rs. 5000 judged by its annual income of 400 paras of paddy & the pltf was entitled to be compensated for the sum of Rs. 2500 being the difference between the real value of the property & the amount realised at the Ct sale or the amount of the encumbrance. He further contends that the judgment of Somayya J. compels me so to hold. I am unable to agree with this contention. The original & appellate judgments of the Cochin Cts which have become final & binding between the parties as regards the partition of the properties in the Cochin State which were not before Somayya J. & which have since been exhibited, clearly decided, that the pltf failed to discharge an encumbrance subject to which alone he had taken the property, that its loss at the Ct sale was not attributable to any negligence or fraud on the part of anybody & that in effecting a partition of the Cochin properties according to the terms of Ex. XX, the pltf was not entitled to any compensation in respect of the loss of a portion of the property allotted to him by reason of the Ct sale. The Cts, in what was then British India, had no jurisdiction to direct or decree a partition of properties situate in the State of Cochin--See 'Rajangam Aiyar v. Rajangam Aiyar' 46 Mad 873: AIR 1922 PC 266. The adjustment of the shares of the several parties with reference to the Cochin properties properly fell within the scope of the partition suit filed in the Cochin State & has been finally decided by that Ct. It is not open to this Ct to go behind the judgment of the Cochin Ct or enquire into any alleged inequality or any right to compensation in respect of the division of the Cochin properties. I do not consider that Somayya J. decided that this Ct was bound to decide the question as regards the inequality in the value of the properties situate in the Cochin State & partitioned by the Cochin Cts. His Lordship said:

'As regards the division of the Cochin properties, the parties are bound by the decree of the Cts of Cochin to which they were all parties. We have further to see whether as regards the Cochin properties, the Cts have adjusted the inequalities, if any, in the properties allotted to the various sharers. The proper course under these circumstances seems tome to direct the lower appellate Ct to receive the records in the Cochin Ct & then adjust, the inequalities, if any.'

I hold that the Cochin Cts have definitely & finally adjudicated upon the alleged inequality in value or the right to compensation arising: out of the partition of the Cochin properties adversely to the pltf. that that adjudication is binding on the parties & further that it is not a matter falling within the jurisdiction of this Ct. It follows from the above reasoning that S. A. No. 2118 of 1946 must be allowed with the costs of deft 1 payable by the pltf.

7. The memorandum of cross-objections in this second appeal raises two points. The first, point relates to the value of the silver articles, available for division which was fixed at Rs. 1200 by the Dist J. on the former occasion. Out of this sum the pltf would get a fifth share. This valuation was not modified in second appeal on the former occasion so far as the pltf was concerned & no reason is given in the judgment of the lower appellate Ct why it should now be reduced to Rs. 600. The value of the silver vessels available for partition will therefore have to be taken at Rs. 1200 & not to Rs. 600. The second point relates to the pltf's right to an account of the rents & profits of the properties since the date of the division in status in 1936. This right was provided for in the decree of the Subordinate Judge in view of the conclusion that there had been no effective partition under Ex. XX. On appeal the Dist Ct in the view that it took of Ex. XX as a fair & final partition between the brothers, disallowed the claim for an account of the profits. When the matter reached the H. C. this part of the decree of the Dist Ct was not questioned in second appeal by the pltf. In any case the judgment of Somayya J. accepts the allotment under Ex. XX & merely directs the adjustment of the inequality in the value of the properties allotted by Ex. XX so far as the pltf is concerned. The pltf cannot be heard now to urge that his claim for mesne profits should be considered by this Ct.

8. The memorandum of cross-objections is allowed to the extent of this value of the silver articles available for division which will be fixed at Rs. 1200 instead of Rs. 600 as done by the lower appellate Ct. In other respectsit is dismissed. There will be no order as to costs on the memorandum of cross-objections.

9. No leave in any of the cases.


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