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S. Periasami Vs. Tmt. Chellammal and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Reported in(1980)1MLJ46
AppellantS. Periasami
RespondentTmt. Chellammal and anr.
Cases ReferredNisa v. Din Mohammed A.I.R.
Excerpt:
- .....and the petitioner herein (2nd defendant) had effected a partition between themselves of the family properties under a partition deed!, dated 4th april, 1975, exhibit b-2 being a registration copy of the partition deed. in the said partition, the plaint a schedule properties have been allotted to the first defendant-second respondent herein and the plaint b schedule properties have been allotted to the petitioner herein. in her suit the first respondent has alleged that with a view to deprive her of the maintenance legitimately due to her, the first defendant and the petitioner had effected an unequal partition between themselves, that a major portion of the properties have been allotted to the petitioner here that her rights as a maintenance-holder are not affected by the.....
Judgment:
ORDER

S. Natarajan, J.

1. The revision petition has been preferred by the second defendant in O.S. No. 61 of 1977 on the file of the Court of the District Munsif of Melur. The first respondent herein, who is the plaintiff, is the wife of the first defendant, second respondent herein, and the mother of the second defendant-petitioner herein. She instituted the suit to obtain maintenance, past and future from the first defendant and inter alia to ask for a charge being created on the properties which belonged to the erstwhile joint family comprising of the defendants. While the suit has been instituted in the year 1977, the first defendant and the petitioner herein (2nd defendant) had effected a partition between themselves of the family properties under a partition deed!, dated 4th April, 1975, Exhibit B-2 being a registration copy of the partition deed. In the said partition, the plaint A schedule properties have been allotted to the first defendant-second respondent herein and the plaint B schedule properties have been allotted to the petitioner herein. In her suit the first respondent has alleged that with a view to deprive her of the maintenance legitimately due to her, the first defendant and the petitioner had effected an unequal partition between themselves, that a major portion of the properties have been allotted to the petitioner here that her rights as a maintenance-holder are not affected by the partition effected between the first defendant and the petitioner and as such she was entitled to a charge on the entire family properties which have now been partitioned into A and B schedule properties and allotted to the 1st defendant and the petitioner respectively. It may also be mentioned that as against the first defendant, the first defendant, the first respondent has asked for a personal decree.

2. The first defendant and the petitioner herein raised a preliminary objection before the Court below that the suit has not been properly valued for purposes of court-fees and jurisdiction, that if the suit had been properly valued, it would be beyond the pecuniary jurisdiction of the District Munsif's Court, Melur and consequently the learned District Munsif would not be entitled to try the suit. This defence has been raised in the following manner. The plaint B schedule properties have been purchased under a sale deed, a registration copy of which is Exhibit B-l, dated 22nd April, 1971, for a sum of Rs. 34,000. The petitioner and the first defendant have therefore raised a contention that if the first respondent wanted to have a charge on the B schedule properties and overcome the partition deed entered into between the petitioner and the first defendant, then she should have asked for the setting aside of the partition and she should have valued that relief at Rs. 34,000 for which sum the plaint B schedule properties had been purchased. As a further corollary it was stated by the petitioner and the first defendant that if the suit had been valued at Rs. 34,000 then the District Munsif's Court, Melur, would not have jurisdiction to try the suit.

3. The learned District Munsif had framed two issues with reference to the preliminary objections raised by the petitioner and the first defendant and considered them in detail. After due consideration, the District Munsif has held that the first respondent was not bound to ask for the setting aside of the partition deed and therefore she was also not bound to value the relief in the suit at the sum for which B schedule properties have been purchased. He, therefore, rendered a finding on both the preliminary issued in favour of the first respondent and held that he had jurisdiction to try the suit.

4. It is to canvass the correctness of that order the petitioner has come forward with this revision.

5. Mr. Vaitheswaran, learned Counsel for the petitioner, strenuously contends that inasmuch as a partition had been effected between the petitioner and the first defendant about two years before the institution of the maintenance suit by the first respondent, the first respondent is not entitled to ignore the partition deed and ask for a charge being created on the properties allotted to the petitioner in addition to asking for a charge being created on the properties allotted to the first defendant. He submits that though in form and substance the suit is one for maintenance, the relief asked for in the suit is virtually a cancellation of the partition deed and therefore the first respondent is not entitled to ask for a charge being created on both the schedules of properties described in the plaint, without first asking for the setting aside of the partition deed and paying court-fee thereon, on the value for which B schedule properties have been purchased. Logically the extension of the argument is that if so valued, the suit will go beyond the pecuniary limits of the trial Court and the District Munsif will not have jurisdiction to try the suit.

6. According to Mr. Vaitheswaran, the suit filed by the first respondent will squarely fall within the category of suits envisaged in Section 40 of the Tamil Nadu Court-fees and Suits Valuation Act, because the first respondent really seeks for a cancellation of the partition deed. The learned Counsel places reliance on the following cases to fortify his contention that the question of court-fee has to be determined with reference to the substantive relief that is asked for in the suit and not merely with reference to the form in which the suit has been framed or the words in which the prayer for reliefs has been couched. The cases referred to by Mr. Vaitheswaran are:

7. Shamsher Singh v. Rajinder Prasad and Ors. : [1974]1SCR322 . Muthammal v. Narmada and Ors. : (1975)2MLJ304 and Mrs. Kasthuri and Ors. v. Seth Ghanshamdas Venisimal (1979) T.L.N.J. 51. Though the contentions of Mr. Vaitheswaran appear at first sight to carry some force, yet, on a fuller consideration of the matter it can be clearly seen that they are really not worthy of acceptance. At the outset it has to be noted that the suit filed by the first respondent is pure and simple one for maintenance. For granting the relief of maintenance to the first respondent, it is not at all necessary to go into the question whether the partition has been validly and genuinely effected between the petitioner and the first defendant or whether the transaction was a motivated one. The prayer of the first respondent regarding the creation of a charge on the plaint schedule properties cannot even be said to be a consequential relief in the strict sense of the term. It is only to ensure the realisation of the maintenance awarded to her in the event of the first defendant failing to pay the maintenance awarded to her by Court, a charge is asked for. It therefore follows that if the first defendant respects the award of maintenance by the Court to the first respondent and pays her the amount every month without default, there will be no need or necessity at all for the first respondent to enforce the charge created on the properties for realisation of the maintenance amount. It is in that context I have observed above that the prayer for creation of a charge on the plaint schedule properties cannot strictly be called a consequential relief to the main relief asked for in the suit. Therefore the question of setting aside the partition deed is not really called for in the suit. Once that position is recognised, then it follows that there is no need for the respondent to ask for the setting aside of the partition deed or to pay court-fees for obtaining such a relief.

8. The second factor that has to be noticed is that as a person entitled to maintenance from not only the first defendant but also the petitioner who were members of a joint family, the first respondent is entitled to ask for a charge on the entire family properties, irrespective of the fact whether the petitioner and the first defendant continued to live as members of a joint family or he effected a division by metes and bounds between themselves.

9. Thirdly the first respondent was not a party either directly or eo nominee to the partition deed. Even by operation of law she is not bound by the division of the properties between the petitioner and the first defendant. On that score too, she is not required to ask for the setting aside of the partition deed.

10. It will be apposite to point out here that Section 39 of the Transfer of Property Act, lays down that where a third person has a right to receive maintenance, or a provision for advancement or marriage from the profits of immovable property, and such property is transferred the right may be enforced against the transferee, if he has notice thereof. In the instant case, the petitioner who is the son cannot certainly plead want of notice about his mother being entitled to get maintenance from out of the income of the family properties. Therefore the partition of the family properties between the petitioner and the first defendant can have no impact whatever on the right of the first respondent to proceed against the properties for getting maintenance.

11. Lastly a partition deed cannot in the strict sense be construed as one of the documents referred to in Section 40 of the Tamil Nadu Court-fees and Suits Valuation Act. What Section 40 of that Act contemplates is a document which purports or operates to create, declare, limit or extinguish whether in present or in future any right, or interest in money, movable or immovable property. A partition deed entered into between members of a joint family does not create or assign right in properties for the first time among the sharers; nor does it limit or extinguish their right over all items of properties dealt with in the partition. A partition deed operates as a readjustment of the rights between sharers in the properties jointly owned by all of them till the time of partition. Therefore, it is doubtful if a partition deed can be construed as a document of the nature envisaged in Section 40 of the Tamil Nadu Court-fees and Suits Valuation Act, for the cancellation of which alone court-fees will have to be paid on the value of the subject-matter of the property concerned in the document.

12. In Shamsher Singh v. Rajinder Prasad and Ors. : [1974]1SCR322 , referred to already, the Supreme Court has approved a Full Bench decision of the Lahore High Court in Mt. Zab-ul-Nisa v. Din Mohammed A.I.R. 1941 Lah. 97, where it has been pointed out as to when a person, who is not a party to a document should nevertheless ask for the setting aside of the decree or a document, when he seeks relief in a subsequent suit. The relevant portion of the passage in the judgment which has been extracted in the judgment of the Supreme Court runs as follows:

When the plaintiff is a party to the decree or deed, the declaratory relief, if granted, necessarily relieves the plaintiff of his obligation under the decree or the deed and hence it seems to have been held in such cases, that the declaration involves a consequential relief. In cases where plaintiff is not a party to the decree or the deed, the declaratory relief does not ordinarily include any such consequential relief. But there are exceptional cases in which the plaintiff though not a party to the deed or the decree is nevertheless bound thereby. For instance, when a sale or mortgage of joint family property is effected by a manager of a joint Hindu family, the alienation is binding on the other members of the family (even if they are not parties to it) until and unless it is set aside. Similarly, a decree passed against the manager will be binding on the other members of the family. If therefore a coparcener sues for a declaration that such an alienation or decree is null and void, the declaration must I think be held to include consequential relief in the same way as in those cases in which the plaintiff is himself a party to the alienation or the decree, which is sought to be declared null and void.

From the passage extracted above, it will be seen that the general rule is that if a plaintiff is not a party to a decree or deed, a declaratory relief will not include a consequential relief of the decree or the deed being set aside, and it is only in exceptional cases, such a consequential relief has to be asked for.

13. The above proposition has always received the acceptance at the hands of Courts. I may only refer to one decision, viz., In re Thirupathiamma1, where it was pointed out that as fee plaintiff therein was not a party to the impugned sale deed and as the plaint averred that the sale deed was a sham transaction, the plaintiff need not pray for the cancellation of the document. It was further held that it was unnecessary to travel beyond the plaint allegations and that court-fee had to be charged on the plaint as they were framed and not as they ought to have been framed.

14. For the aforesaid reasons I am clearly of the opinion that the Court below has arrived at the correct conclusion in holding that for the purpose of obtaining a charged maintenance decree in the suit, it is not necessary for the first respondent-plaintiff to have asked for the cancellation of the partition deed executed between the petitioner and the first defendant or pay court-fee with reference to such a relief. When this finding is sustained it necessarily follows that the Court below will have also pecuniary jurisdiction to try the suit.

15. The revision has to fail in the light of the conclusion arrived at and will accordingly stand dismissed with costs.


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