P.D. Dinakaran, J.@mdashThe above appeal is directed against the judgment and decree dated 20.6.2001 in A.S.No.292 of 1995 on the file of
this Court, against the judgment and decree dated 9.12.1994 in I.A.No.425 of 1990 in O.S.No.90 of 1976 on the file of the Subordinate Judge,
Chidambaram.
2. The appellants are the second defendant and his son who was impleaded as 5th respondent in the first appeal.
3. For the purpose of convenience, parties are referred to as per their rank in the suit.
4.1. In brief, the plaintiffs viz., respondents 2 and 3 herein laid O.S.No.90 of 1976 on the file of the learned Subordinate Judge, Chidambaram, for
partition and separate possession of suit property, with mesne profits.
4.2. According to the plaintiffs, the suit properties were originally belong to one Govindasamy Nainar, who had two wives. He had two sons
through his first wife, viz. Marimuthu @ Narayanasami, the first defendant herein and Sabapathi, who died in the year 1940 leaving no male issue.
Govindasamy Nainar had no issue through his second wife.
4.3. Marimuthu @ Narayanasami, the first defendant married Dhanabagyammal, third defendant and had two sons viz. Krishnamoorthy, second
defendant and Arumugam, who is not a party in the suit.
4.4. Arumugam had two wives, viz. first wife - Padmavathi, now deceased and the second wife - Saroja, the second plaintiff. Sivagamasundari,
fourth defendant is the daughter of Arumugam and his first wife Padmavathi. Srinivasan, the first plaintiff, is the son of Arumugam and his second
wife, Saroja, viz. the second plaintiff.
4.5. Since there is no partition between Marimuthu and his sons, viz., Krishnamoorthy and Arumugam (died intestate in 1975), the plaintiffs, viz.
the son and second wife of Arumugam, filed the above suit for partition claiming the shares of Arumugam along with the fourth defendant, who is
nonetheless the daughter of the said Arumugam.
5. It is also the case of the plaintiff that item Nos.1 to 7 of the B Schedule property were allotted to the shares of the first defendant, Marimuthu @
Narayanaswami. After the death of Sabapathi, the first defendant Marimuthu, his sons viz. Krishnamoorthy, the second defendant and the said
Arumugam, who is nonetheless the father and husband of the plaintiffs, were running the provisions shop. They were also running a pesticide shop,
having a branch at Sethiathope and a Brandy Shop and therefore, all the suit properties mentioned in the Schedule A, B and C, were joint family
properties acquired through the said businesses.
6. The first defendant, while admitting the fact that item Nos.1 to 7 of the B Schedule properties were allotted to the share of the first defendant
during the year 1959, denied the contention that the said Govindasami Nainar was running a provisions shop and that it was continued by his sons
namely, Marimuthu, first defendant and Arumugam, father and husband of the plaintiffs 1 and 2 respectively. The first defendant contended that he
was running a betel nut shop on his own in the year 1940 and expanded the same and thereafter, was running a provision shop in 1953 and handed
over the same to his second son Arumugham, while the first son, viz. the second defendant was living separately. The first defendant also
contended that the second defendant was running a Brandy Shop and the same was closed due to reintroduction of prohibition by the
Government. Pesticide business was also started by the second defendant separately and later on closed and therefore, no family funds were
invested in either brandy shop or pesticide business of the second defendant. It is therefore stated that item Nos.1 to 7 of the B Schedule property
alone were joint family properties, which was allotted to the first defendant during partition in 1959 and all other properties were self acquired
properties, out of his own funds. The first defendant also contended that item Nos.9, 11 and 18 were purchased prior to partition in 1959 and item
Nos.19 and 20 of the B schedule properties had been allotted to the shares of his father in the year 1959 and later on settled in his favour, by his
father, intending that he should take the said properties separately for his own benefit. The first defendant contended that items Nos.8 to 20 of the
B Schedule properties were his own properties and exercised his separate right thereon. Therefore, it was stated that the plaintiffs were entitled to
partition and separate possession only with regard to item Nos.1 to 7 of the B Schedule Property.
7. Upon the above rival contentions, by a preliminary decree dated 12.12.1997, the trial Court, accepting the case of the first defendant, held that
except item Nos.1 to 7 of the B Schedule properties, all are individual properties of the first defendant and accordingly divided item Nos.1 to 7 of
the B Schedule properties and also the cash of Rs.600/- and Gold addigai of 11/2 sovereign mentioned in the C Schedule properties and item
Nos.1 to 11 and 13 to 16 of para 3 of Ex.C1, by declaring 5/24 share to the first plaintiff, 1/24 share each to the second plaintiff, third and fourth
defendants and 8/24 share each to defendants 1 and 2.
8. Pursuant to the said preliminary decree dated 12.12.1977 in O.S.No.90 of 1976, a final decree was passed by the learned Subordinate Judge
on 22.3.1979 in I.A.No.340 of 1978, which was confirmed in A.S.No.338 of 1980 by judgment and decree dated 12.2.1987, modifying the
mesne profits of the third and fourth defendants and confirming all other shares.
9. Thereafter the defendants 3 and 4, namely the wife of Marimuthu and daughter of Arumugham, filed I.A.No.425 of 1995 in O.S.No.90 of 1976
for allotment of each 1/24th share, totalling to 1/12th share of the Suit Property, as per the decree and judgment dated 12.2.1987 made in
A.S.No.388 of 1980.
10. The learned Subordinate Judge appointed an Advocate Commissioner to effect the division of 1/24th share to defendants 3 and 4 each,
totalling to 1/12th share, as above and accordingly, the Commissioner by his report dated 17.10.1994 allotted the 1/12th share to defendants 3and
4, to which defendants 3 and 4 submitted their objection to the effect that the Advocate Commissioner had not valued the properties properly; that
the properties allotted to them were already sold by defendants 1 and 2; and that the said properties should have been allotted to the shares of
defendants 1 and 2, who had sold the same to the third parties. However, the learned Subordinate Judge, Chidambaram, by order dated
9.12.1994, overlooked the objection of defendants 3 and 4 and allotted the properties which were already sold to defendants 3 and 4, as per the
Advocate Commissioner''s Report, towards their 1/12th share.
11. Aggrieved by the said order dated 9.12.1994, defendants 3 and 4 preferred an appeal before this Court in A.S.No.292 of 1995 contending
that the lower Court erred in allotting the shares of the respective parties by allotting the properties which had already been sold out in favour of the
third parties. It was also contended on behalf of the fourth defendant that if the properties which were already sold were also be taken into
consideration for partition, the same should have been allotted to the share of the parties who sold the said properties, as otherwise, the division of
property would be inequitable, as the parties had chosen to sell the properties only after passing of the preliminary decree. It was, therefore,
contended that the allotments made by the Advocate Commissioner were not justified.
12. However the second defendant and his son Anandan, who was impleaded as respondent 5 in the A.S.No.292 of 1995, contended that the
Advocate Commissioner had valued the property correctly and the allotment made by the Advocate Commissioner was just and proper; as the
properties were sold only to meet the joint family expenses, such as for the marriage of the fourth defendant.
13. The learned single Judge rejecting the contention of the second defendant, held that the allotment of properties which were already sold by
defendants 1 and 2, to the shares of defendants 3 and 4 is illegal and opposed to the principles of equity; and therefore, set aside the order dated
9.12.1994 made in I.A.No.425 of 1990 in O.S.No.90 of 1976 on the file of the learned Subordinate Judge, Chidambaram. Hence, the above
appeal.
14. Mr. Kannan, learned counsel for the appellants seriously contends that during the pendency of the appeal, a compromise was entered into
between the parties on 21.9.1997 before the Panchayatdar to the effect that the first and second defendants shall be paid Rs.50,000/- each by the
fourth defendant and the first plaintiff jointly and on such payment, all the appeals, viz. A.S.Nos.295 of 1995 and 968 of 1986 shall be withdrawn
by the respective parties, and therefore, the properties were sold by defendants 1 and 2 only for the marriage of the fourth defendant and for the
joint family expenses; and that the said properties were sold by defendants 1 and 2, after passing of the preliminary decree, only in the interest of
the joint family, but not otherwise.
15. We are unable to appreciate the above contentions of the learned counsel for the appellants as there is nothing on record to show that either
the appellants or the respondents herein have brought the compromise dated 21.9.1997 to the notice of the learned single Judge and therefore, the
learned counsel for the appellants is not entitled to advance such argument as though the learned single Judge had overlooked the terms of
compromise entered between the parties, during the pendency of the appeal. Therefore, we do not see any violation of Order 23, Rule 3, C.P.C.
In any event, since the fact that defendants 1 and 2 had sold the suit properties subsequent to the passing of the preliminary decree, despite the
allotment of such property to defendants 3 and 4 by the Advocate Commissioner, we are in total agreement with the learned single Judge that the
division of property made by the Advocate Commissioner in allotting the properties already sold by defendants 1 and 2 to the shares of defendants
3 and 4 are illegal and inequitable. Hence, finding no merit in the contention of the learned counsel for the appellants, the above appeal is
dismissed. No costs. Consequently, CMP No.12264 of 2001 is also dismissed.
