NABISHA BEGUM Vs. ARUMUGA THEWAR

JUDGEMENT

(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. 35 of 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.