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Non-Reportable

 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.5534-5535 of 2007   

A. Dharmalingam (Dead) by LRs.        ……Appellants

VERSUS

V. Lalithambal & Ors. etc. etc.         ..…. Respondents

JUDGMENT

Uday Umesh Lalit, J.

1. These appeals by special leave challenge the common judgment and

order dated 25.07.2003 passed by the High Court of Judicature at Madras

dismissing  Second  Appeal  Nos.1307-1308  of  1992  preferred  by  the

appellant (since deceased and now represented by his legal representatives).

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2. In partition between two brothers effected sometime in 1923, certain

properties including the suit property came to the share of one Subramania

Iyer.   In  a  subsequent  partition  executed  insofar  as  branch  of  said

Subramania  Iyer  was  concerned,  the  properties  were  equally  divided

between four sons of said Subramania Iyer, namely, defendant Nos.1 to 4 in

the present proceedings.  Having given 1/4th share each to said four sons, the

right  of  enjoyment  of  the  properties  in  question  was  retained  by  said

Subramania  Iyer  and  his  wife  Meenakshi  Ammal  till  their  life  time.

Defendant Nos.2 and 1, namely, S. Krishnamoorthy and S. Venkateswaran

by  registered  sale  deeds  dated  11.09.1975  and  30.09.1975  respectively

transferred their undivided share in the properties in question in favour of

the appellant.   Said  Subramania  Iyer  and Meenakshi  Ammal died  in  the

years 1975 and 1984 respectively.

3. The appellant thereafter filed Original Suit No.64 of 1985 on the file

of  the District  Munsif  Court,  Uthamapalayam seeking declaration that  he

was entitled to undivided half share in the suit property which was described

in schedule to the plaint.  Relying on two sale deeds effected by Defendant

Nos.1 and 2 it was contended that the appellant was entitled to one half share

in  the  suit  property.   It  may  be  noted  here  that  Defendant  No.2,  S.

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Krishnamoorthy did not have a son but Defendant No.1, S. Venkateswaran

had four sons.  However, said four sons were not made parties in Original

Suit  No.64  of  1985.  The  appellant  thereafter  filed  O.S.  No.265 of  1986

seeking injunction against the defendants named therein.  In this suit said

four sons of S. Venkateswaran were added as parties.

4. The aforesaid suits  were contested.   By its  common judgment and

order dated 06.01.1989 the trial court decreed Original Suit No.64 of 1985

holding the appellant to be entitled to one half share in the suit property and

accordingly  passed  a  preliminary  decree  in  that  behalf.   The  trial  court,

however, declined to grant  any relief of permanent injunction against  the

defendants.  The defendants being aggrieved,  filed Appeal Nos.17 and 18 of

1989 in the Court of Subordinate Judge, Periyakulam.  These appeals were

disposed of by a common judgment dated 31.07.1991.  The lower appellate

court held that since four sons of Defendant No.1 were not parties to the suit

for declaration and partition, insofar as branch of said Defendant No.1 was

concerned the sale deed in favour of the appellant would be valid only in

respect of share of said Defendant No.1.  The lower appellate court held that

the appellant would thus be entitled to the share of Defendant No.1 in his

branch, namely  1/4 x 1/6 = 1/24 and the share of Defendant No.2.  The

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resultant share that the appellant was entitled to was, however, computed to

be 5/24.

5. The matter  was carried further  by filing Second Appeal  Nos.1307-

1308 of 1992 in the High Court.  The second appeals were dismissed by the

High Court confirming the view taken by the lower appellate court.

6. We heard Mr. V. Sudeer, learned Advocate for the appellant and Mr. V.

Prabhakar, learned Advocate for the respondents.  Having gone through the

entirety of the matter and the relevant record we are in complete agreement

with the assessment made by the lower appellate court and  the High Court

insofar as the merits of the matter are concerned.    However, there is a small

error which needs to be corrected.  The addition of 1/24 share of Defendant

No.1 and 1/4th share of Defendant No.2 would aggregate to 7/24 and not

5/24.  Except for this correction,  the judgments under appeal do not call for

any interference by this Court.  

7.  We, therefore, allow the present appeals only to the aforesaid extent

and declare that the appellant is entitled to 7/24 share in the suit property and

a preliminary decree in that behalf stands passed in favour of the appellant.

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Since the matter has been pending in the courts below since 1985, we may

also observe that the execution proceedings be expedited.  No costs.

……….……………J. (Arun Mishra)

………………..……J. (Uday Umesh Lalit)

New Delhi, April 27, 2018