Madras High Court
G.Subramanian vs Navaneetham on 29 November, 2024
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
S.A.No.939 of 2016
IN THE HIGH Court OF JUDICATURE AT MADRAS
Dated : 29.11.2024
CORAM :
THE HON’BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Second Appeal No. 939 of 2016
and
C.M.P. No. 18998 of 2016
C.M.P. Nos.1564 and 9981 of 2017
&
C.M.P. No. 20891 of 2023
—
G.Subramanian .. Appellant
Versus
1. Navaneetham
2. G. Bhoobalan .. Respondents
Second Appeal filed under Section 100 of Code of Civil Procedure
against the Judgment and Decree dated 03.09.2015 passed in A.S.No.59 of
2013 on the file of the Subordinate Court, Poonamallee confirming the Fair and
Decreetal Order dated 05.04.2013 passed in I.A.No.1537 of 2008 in
O.S.No.173 of 1998 on the file of the District Munsif Court, Ambattur.
For Appellant : Mrs.Chitra Sampath, Senior Counsel
for Mr. T.S. Baskaran
For Respondents : Mr. D. Ashok Kumar for R-1
Dr.A.E.Chelliah, Senior Counsel
for Mr. C. Saifullah for R-2
https://www.mhc.tn.gov.in/judis JUDGMENT
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S.A.No.939 of 2016
This Second Appeal arises out of the judgment and decree dated
03.09.2015 passed in A.S. No. 59 of 2013 on the file of the learned Subordinate
Judge, Poonamallee, confirming the fair and decreetal order dated 05.04.2013
passed in I.A. No. 1537 of 2008 in O.S. No. 173 of 1998 on the file of the
learned District Munsif, Ambattur.
2. For the sake of convenience the parties to this Appeal shall be
referred to as “Plaintiff” and ‘Defendants’ as has been arrayed in the suit.
3. The Plaintiff/first Respondent in this Appeal is the sister of the
Defendants 1 and 2. The Plaintiff has filed the Suit in O.S. No. 173 of 1998
before the learned District Munsif, Ambattur seeking the relief of partition and
separate possession of 1/3rd share in Item 1 to 3 of the suit scheduled
properties.
4. The Defendants filed their written statements denying the Plaintiff’s
contentions in the suit stating that the suit scheduled properties were the
ancestral property of late Govindarajulu and the properties standing in the
name of the mother of the Plaintiff were purchased from the funds of ancestral
nucleus. As the Plaintiff had already been allotted a property, she is not
entitled to any share in the suit scheduled property.
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5. The trial Court framed issues for consideration and the parties went
for trial. During trial, the Plaintiff examined herself as P.W-1 and marked
Ex.A-1 to Ex.A-4. On behalf of the Defendants, the second Defendant
examined himself as D.W-1 and marked Ex.B-1 to Ex.B-4. After trial, on
appreciation of oral and documentary evidence, the learned District Munsif,
Ambattur, by Judgment dated 20.09.2007, granted preliminary decree for
partition and separate possession of 1/3rd share in Item Nos. 1 to 3 of the suit
scheduled property in favour of the Plaintiff. No appeal was preferred by the
Defendants in the suit against the grant of preliminary decree.
6. On the basis of the preliminary decree passed in the suit, the
Plaintiff filed I.A. No. 1537 of 2008 in O.S.No.173 of 1998 for final decree in
terms of preliminary decree by appointing an Advocate Commissioner to
divide the property by metes and bounds and for allotment of 1/3rd share to the
Plaintiff. Accordingly, the trial Court appointed a Advocate Commissioner.
The Advocate Commissioner, after measuring the property by metes and
bounds, with the help of a Taluk Surveyor, filed the report in which it was
stated that as the Plaintiff was not interested in getting a share in the dwelling
house (Item No.1 of the suit schedule) measuring about 5 grounds as it was
under the occupation of the Defendants and in Item No.3 as it was already sold
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by the Defendants pending suit and wanted her 1/3rd share of Item Nos. 1 to 3
to be given in Item No.2. The Advocate Commissioner thus allotted 89.8
cents in Item No.2 out of the total extent of 2 Acres and 28 Cents, to the
Plaintiff.
7. The report of the Advocate Commissioner was objected to by the
Defendants on the ground that the Advocate Commissioner was appointed only
to ensure division of the suit scheduled properties by metes and bounds. While
so, the suggestion given by the Advocate Commissioner to grant larger extent
of land to the Plaintiff in Item No.2 in view of the fact that she was not
interested in item Nos. 1 and 3 is per se liable to be discarded and
consequently, the report of the Advocate Commissioner must not be taken on
record.
8. After due enquiry, the learned District Munsif, by Order dated
05.04.2013 in I.A. No. 1537 of 2008 in O.S. No. 173 of 1998 passed final
decree in favour of the Plaintiff thereby granting larger extent of land in Item
No.2 measuring an extent of 89.8 cents out of the total extent of 2 Acres 28
Cents. Aggrieved by the said order dated 05.04.2013 of the trial Court, the first
Defendant alone has preferred A.S. No. 59 of 2013 before the learned
Subordinate Judge, Poonamallee.
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9. In the Appeal in A.S. No. 59 of 2013 before the first appellate Court,
it was mainly contended that the share allotted to the Plaintiff in item No.2 of
the suit scheduled property by the trial Court is not proper. In other words, the
division of share in item No.2 of the suit scheduled property is unequal and it is
contrary to the principle of partition of the properties by metes and bounds.
10. After hearing both sides, the learned Subordinate Judge,
Poonamallee by Judgment dated 03.09.2015 dismissed the Appeal and
confirmed the fair and decretal Order dated 05.04.2013 passed in I.A.No.1537
of 2008 in O.S.No.173 of 1998. Aggrieved by the same, the first Defendant
alone has preferred this Second Appeal.
11. At the time of admission of this Second Appeal, the following
substantial questions of law was framed for determination by this Court and
they are:-
(i) Whether the Courts below committed a grave error
in accepting the Advocate Commissioner’s report which is
prepared without following the due procedures laid under the
law and without adopting the valuation of the Suit properties
to equalize the shares of the respective parties?
(ii) Whether the Courts below failed to divide the Suit
property by metes and bounds taking into account good and
bad soil?
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12. Mrs. Chitra Sampath, learned Senior Counsel appearing for the first
Defendant would vehemently contend that the Courts below erred in observing
that the relinquishing of right by the Plaintiff over item Nos. 1 and 3 is an
advantage to the Defendants who are residing in the said property. When the
Defendants are residing in the Item No.1 of the suit scheduled property even
prior to the suit, the Item No.1 of the property ought not to have been included
in the plaint filed for partition. The learned Appellate Judge simply brushed
aside the plea of the Appellant that while passing the final decree, the trial
Court exceeded the jurisdiction and granted larger share to the Plaintiff. The
Appellate Court erred in holding that out of the total extent of all the three
items of suit property being 282.74 Cents, the Plaintiff is entitled to 94.24 cents
as per preliminary decree and hence a single lot of 89.8 cents from item No.2
of the suit schedule property is to be allotted to the Plaintiff. Having allotted
such a share, the courts below observed that what was allotted to the Plaintiff is
only a minuscule share. Such an observation is erroneous and not consistent
with the share allotted to the Plaintiff. The land allotted to the Plaintiff has got
higher market value than the property allotted to the Defendants, which
resulted in unequal division of the properties.
13. The learned Senior Counsel for the first Defendant further
contended that the report of the Advocate Commissioner suggesting a larger
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extent of land for the Plaintiff/Navaneetham without dividing Item No.2 of the
property equally into 3 equal shares for the Plaintiff and Defendants 1 and 2, is
arbitrary and unreasonable. The suggestion given by the Advocate
Commissioner that since the Plaintiff had relinquished her claim to Item Nos.1
and Item No.3 the Plaintiff must be given a larger share in the properties is
beyond the scope of the warrant issued to him. The Advocate Commissioner
was appointed to note down the physical features and to suggest as to how the
item No.2 of the suit scheduled properties could be divided among the Plaintiff
and Defendants. While so, it is not open to the Advocate Commissioner to
suggest that since Plaintiff had given up her share in item Nos. 1 and 3 of the
suit scheduled properties, she must be given a larger share. When such a
suggestion was unceremoniously given by the Advocate Commissioner, his
report ought to have been discarded by the trial Court, instead of placing
reliance on it and allotting a larger share to the Plaintiff. Even though
objection had been raised by the Defendants for such a report of the Advocate
Commissioner, it was simply discarded by the trial Court while passing the
final decree in the suit.
14. Mrs. Chitra Sampath, learned Senior Counsel for the Appellant
further submitted that pending Second Appeal, the Appellant filed
C.M.P.No.12597 of 2024 seeking cancellation of the Advocate Commissioner’s
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report before the learned District Munsif, Ambattur on the ground that the
report of the Advocate Commissioner, suggesting a larger extent of land to
Plaintiff, is uncalled for and it is beyond the scope of warrant issued to him.
The Advocate Commissioner has no right or has locus standi to suggest
division of the properties in such a manner where large extent of share to be
given to the Plaintiff. Therefore, the learned Senior Counsel for the first
Defendant submitted that an Advocate practising before this Honourable Court
and who is well versed in Civil Court proceedings may be appointed as
Advocate Commissioner after scrapping the report submitted by the Advocate
Commissioner appointed by the trial Court.
15. The learned Senior Counsel for the first Defendant also submitted
that after final decree proceedings were issued, the Plaintiff had entered into
sale agreement with a third party for sale of her share of the property for
consideration of Rs.5.55 Crores. If the Plaintiff sells the property, the sale
proceeds, to be realised thereof, has to be equally apportioned by the
Defendants.
16. The learned Senior Counsel for the first Defendant also submitted
that the first Defendant had filed CMP. No. 20891 of 2023 under Section 22 of
Hindu Succession Act read with Section 151 of Civil Procedure Code seeking
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purchase of the property. It is also submitted that on behalf of the Appellant,
Contempt Petition was filed in Cont. P. No. 2123 of 2024 to initiate contempt
proceedings against the Plaintiff-first Respondent herein for having entered
into an agreement of sale with third parties for the sale of her share of the
property after an order of interim stay was granted by this Court.
17. The learned Senior Counsel also submitted that as per Section 22 of
the Hindu Succession Act, a co-parcener who intends to sell the property may
sell the property to another co-parcener before looking out for a third party
purchaser. The co-parcener who intends to purchase the property shall be
given the priority to purchase the property and only in the event of the co-
parcener’s reluctance or refusal to purchase the property, resort can be made to
sell the property to a third party. It is the contention of the learned Senior
Counsel for the first Defendant that the Plaintiff had entered into a sale
agreement for sale of her property for a value of Rs.5,55,00,000/- and if she
sells the property, there will be no ingress or egress to their property from the
main road. Therefore, the learned Senior Counsel for the Appellant seeks to
permit the Appellant and the second Defendant to purchase the property
allotted towards the share of the Plaintiff by scrapping the agreement of sale
she had entered into with a third party purchaser. Accordingly, the learned
Senior Counsel for the first Defendant-Appellant prayed for allowing this
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Appeal.
18. In support of her contention the learned Senior Counsel appearing
for the first Defendant relied on the following citations:-
(i) In the case of P.Srinivasamurthy vs. P.Leelavathy reported in
(2000) 2 CTC 159 wherein the Hon’ble Supreme Court has held as follows:-
“Hindu Succession Act, 1956, Section 22 – Right of pre-emption Hindu
dying intestate leaving behind him his first wife’s son, second wife and
her children – First wife’s son filed suit for partition claiming th share
and preliminary decree was passed and he filed application for final
decree – First wife’s son and second wife and her son except one son
joined together and sold their 6/7th share to stranger – Dissenting son
born to second wife filing suit for declaration that he is entitled to
preferential right to acquire 6/7th share and for declaration that sale
deed in favour of stranger is void and not binding – Defendants in such
suit filing application to dismiss suit on grounds that preferential right
ought to be exercised before contemplated transfer and that offer was
first made to plaintiff – Single Judge allowed application and dismissed
suit – When Hindu dies intestate leaving more than one heir specified
in class I of schedule and if one such heir wants to transfer or proposes
to transfer his interest in property then other legal heirs shall have
preferential right to acquire interest which is proposed to be transferred
– Letter sent by defendants making offer to plaintiff returned unserved
– Plaintiff had written letter suggesting mode of partition and not to sell
property – Plaintiff had thus expressed his desire to purchase portion
of property – Defendants who are co-heirs have not taken into
consideration said option before executing sale deed in favour of
stranger in respect of their 6/7th share – Section 22 (1) confers
incidental right on heirs other than one who is proposed to transfer his
interest – Where transfer is made in violation of provisions of section
aggrieved co-sharers cannot be without remedy because every legal
right must necessarily carry with it remedy for enforcing same –
Section 22 does not provide for special procedure for enforcement of
such right and regular civil suit before competent court is appropriate
remedy – Validity or invalidity of transfer effected by co-heirs would
be relevant in such action – Order of Single Judge dismissing suit as
not maintainable without trial is incorrect – Suit remanded.”
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(ii) In the case of N.Manickam vs. Kanagaraj reported in 2012 (3)
CTC 495 wherein the Hon’ble Supreme Court has held as follows:-
“Hindu Succession Act, 1956 (30 of 1956), Section 22 – Right
of Pre-emption – Preferential right to acquire property in certain cases –
Invocation thereof – Essential conditions: (1) interest in any immovable
property of intestate or in any business devolves upon two or more
heirs specified in Class I of Schedule (2) any one of such heirs proposes
to transfer his or her interest in property or business (3) in that case,
other heirs shall have preferential right to acquire interest proposed to
be transferred.
Hindu Succession Act, 1956 (30 of 1956), Section 22 – Right of
Pre-emption – When co-sharer should exercise right of pre-emption –
Whether right of pre-emption can be exercised by co-sharer after sale
of undivided share by other co-sharer in favour of third party – Held,
right of pre-emption can be exercised even after sale made by co-sharer
and sale is only voidable at instance of other co-sharer, who has denied
preferential right – Right of pre-emption does not depend upon
divisibility of property and even if property is capable of division, co-
sharer, who has not sold his share, can exercise his right of pre-
emption.
Hindu Succession Act, 1956 (30 of 1956), Section 22 –
Limitation Act, 1963 (36 of 1963), Article 97- Right of Pre-emption
Separate Suit Co-sharer filed an Application to exercise right of pre-
emption in Suit for Partition at Final Decree proceeding stage – One
co-sharer sold undivided share in favour of third party pending – Final
Decree proceedings – Whether co- sharer should file separate Suit for
Partition to exercise his right of pre-emption or can he maintain
Application in Partition Suit itself – When third party purchaser also
joined in Final Decree proceedings and prayed for partition of his
share, co-sharer can maintain Application to exercise his right of pre-
emption – Co-sharer need not file separate Suit for enforcement of his
right of pre-emption.”
(iii) In the case of Ghantesher Gosh vs. Madan Mohan Ghosh reported
in (1996) 11 SCC 446 wherein the Hon’ble Supreme Court has held as
follows:-
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S.A.No.939 of 2016“A. Partition Act, 1893 S.4 – Applicability of at different
stages of litigation between co-owners and stranger transferee suing
for partition Transfer of share of a dwelling house belonging to an
undivided family to a stranger Purchase of the stranger transferee’s
share by a co-owner family member Condition for When “such
transferee sues for partition” “Sues for partition” Connotation of –
Wider in scope than expression “filing suit for partition” Held, suit for
partition in the context includes initiation of proceedings for
execution of partition decree S. 4 operates at all stages of litigation in
a partition suit from its inception till its termination not only by the
final decree for partition but also by its complete satisfaction and
discharge in execution proceedings Where pursuant to a final decree
for partition a co-owner transferred his share in the house to a stranger
and the stranger transferee thereafter files petition for execution of the
decree, S. 4 can be invoked by any other co-owner family member for
purchasing the stranger’s share – But once the final decree for partition
is completely satisfied and discharged in execution proceedings, S. 4
cannot be invoked Civil Procedure Code, 1908, S. 11 Expln. VII, Or.
22 Rr. 10, 12- Transfer of Property Act, 1882, Ss. 44, second para and
52-Words & phrases – ‘Sue’, ‘sues for partition – Pre-emption”
19. Per contra, the learned Counsel appearing for the Plaintiff-first
Respondent submitted that as against the final decree passed in the suit, the
Appeal as well as the Second Appeal are not maintainable. If at all, an Appeal
or Second Appeal can be entertained only as against the preliminary decree
passed in the suit and not as against the final decree proceedings. In order to
buttress such submission, the learned Counsel for the Plaintiff-first Respondent
placed reliance on the reported ruling in 2022 (4) CTC 149 in the case of
Kattukandi Edathil Krishnan and another Vs. Kattukandi Edathil Valsan
and others. By placing reliance on the aforesaid decision, at the outset, it is
submitted that there cannot be an Appeal or Second Appeal as against the final
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decree passed in the Suit. After passing of preliminary decree, a final decree
will be passed by following certain procedure. The parties to the final decree
proceedings are therefore estopped from filing an Appeal or Second Appeal as
against the final decree in the suit.
20. The learned Counsel for the Plaintiff also relied on the decision of
the Hon’ble Supreme Court in the case of Mool Chand and others vs. Deputy
Director Consolidation and others reported in (1995) 5 SCC 631 wherein it
has been held as follows:-
“B. Civil Procedure Code, 1908 – S. 2(2) and Or. 20 R. 18(2) & Or. 26
R. 14 Preliminary and final decrees in partition suit – Preliminary
decree finalises matters relating to declaration of rights and interests –
Final decree works out those rights – Partition.
C. Civil Procedure Code, 1908 – S. 97 – Failure to appeal against
preliminary decree would operate as a bar to raising any objection to it
in appeal filed against final decree.”
21. The earlier learned Counsel for the Plaintiff
Mr.T.S.N.Prabhakaran also relied on the reported ruling of this Court in the
case of P.Lakshmanian and another vs. P.Jeyalakshmi and others [2014
SCC OnLine Mad 672] wherein it is held as follows:-
“Code of Civil Procedure, 1908 (5 of 1908), Section 11 – Partition
Suit – Final Decree proceedings – Once Preliminary Decree is passed and it
has become final, parties are estopped from raising any new contention at
stage of Final Decree, which was not raised in Suit – Court cannot go
beyond Preliminary Decree – Principle of res judicate attracted – Defendants
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S.A.No.939 of 2016are estopped from raising issue decided against them as it had become final
– Second Appeal dismissed.
Therefore, the Court cannot go beyond the Preliminary Decree and no
interference can be done in the Appeal.”
The above decision is based on the ruling of the Hon’ble Supreme Courtin the cases of Prahlad Singh v. Col. Sukhdev Singh [(1987) 1 SCC 727 ] and
Satyadhyan Ghosal vs. Deorajin Debi [AIR 1960 SC 941].
22. As per the above rulings, when the parties to the suit in this case
had not preferred any appeal against the preliminary decree granted in the suit
for partition, after grant of final decree, the parties cannot agitate their right by
way of filing appeal as it is barred under the principle of res judicata and
substantial question of law does not arise in final decree proceedings and this
Second Appeal is not maintainable against the final decree proceedings.
23. The learned Counsel for the contesting first Respondent-Plaintiff
also submitted that there is no substantial question of law involved in this
Appeal for determination. The questions of law framed are only questions of
facts. In exercise of power under Section 100 of Code of Civil Procedure, this
Court cannot entertain the Second Appeal when there is no substantial question
of law arisen for consideration. It is the submission of the learned Counsel for
the Plaintiff that the Second Appeal had been filed with an ulterior motive to
delay the execution of final decree proceedings. The Plaintiff had already
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battled out the litigation for more than 2 decades. The Defendants did not
accede to the Plaintiff’s request for effecting partition of the family properties
amicably and therefore, she was constrained to file the Suit in the year 1998
before the trial Court. During trial, D.W-1 in his cross-examination had clearly
stated that he does not have any objection in giving 1/3rd share of the suit
properties to the Plaintiff. However, the Defendants have unceremoniously
sold the property described as item No.3 of the plaint, whereby, the Plaintiff
was deprived of her share. In respect of item No.1, being a house, the Plaintiff
had magnanimously given up her share taking note of the fact that the
Defendants are her brothers are residing in the said house. However, the
Defendants have resorted to all attempts to ensure that the fruits of the final
decree are not enjoyed by the Plaintiff. The Plaintiff was therefore constrained
to seek share only in Item 2 alone. Item 2 of the plaint is a vacant land in
S.Nos. 45/1, 45/2A, 46, 47/2, 57/1 and 60/2 measuring a total extent of 2 Acres
and 28 Cents. Since the Plaintiff was not interested to take her share in Item
Nos.1 and 3, the learned Advocate Commissioner made a passive suggestion
that she should be compensated by allotting additional extent when the
property is divided among the parties. In any event, even in the absence of the
suggestion by the Advocate Commissioner, the trial Court as well as the
appellate Court, on the basis of the fact that the Plaintiff had given up her claim
in respect of properties described as item Nos. 1 and 3 of the plaint, can
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suggest or even direct division of larger extent of land to the Plaintiff.
24. The learned Counsel for the Plaintiff/first Respondent further
submitted that the Appellant contends that the Plaintiff had entered into an
agreement of sale during the pendency of the present Second Appeal. On the
other hand, the Defendants, during the pendency of the suit, have even sold the
property described as item No.3 of the plaint. While so, they have no locus
standi or moral right to contend that the agreement of sale entered into by the
Plaintiff, in respect of the share allotted to her, is improper.
25. The learned Counsel for the first Respondent-Plaintiff submitted that
when the preliminary decree is not challenged, the Defendants does not have a
right to file the Appeal or the Second Appeal against the order passed in the
final decree proceedings as per the reported ruling of the Hon’ble Supreme
Court in (1995) 5 SCC 631 in the case of Mool Chand and others vs. Deputy
Director Consolidation and others. When the Second Appeal itself is not
maintainable, appointing another Advocate Commissioner would not arise. In
any event, at this stage, appointing another Advocate Commissioner, as
contended by the learned Senior Counsel for the Plaintiff, would only prolong
the agony of the Plaintiff. Accordingly, the learned Counsel for the Plaintiff-
first Respondent prayed for dismissal of the Second Appeal.
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26. On the above contentions, this Court heard the learned Senior
Counsel appearing for the second Defendant. It is needless to mention that this
Appeal has been filed only by the first Defendant in the suit and therefore, the
second Defendant is only a formal party to this Appeal. However, the learned
Senior Counsel submitted the written arguments and it was considered by this
Court before proceeding with this Appeal. In effect, it is the submission of Mr.
A.E. Chelliah, learned Senior Counsel for the second Respondent that the
Second Appeal is maintainable.
27. Heard the learned Senior Counsel for the Appellant-first Defendant,
the learned Counsel for the first Respondent-Plaintiff and the learned Counsel
for the second Defendant-second Respondent. The written arguments
submitted by the learned Senior Counsel for the Appellant-first Defendant, the
learned Counsel for the first Respondent-Plaintiff and the learned Counsel for
the second Defendant-second Respondent have been considered along with the
materials placed on record.
28. Admittedly, the present Second Appeal has been filed as against the
order passed in the final decree proceedings. Admittedly, none of the
Defendants have filed an Appeal assailing the preliminary decree passed in the
suit and it has become final. Though the first Defendant states that he
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preferred Appeal Suit challenging the preliminary decree, no records produced
before this Court to show the number of the Appeal and its status. When the
preliminary decree proceedings has become final, then the trial Court would
only find out ways and means to partition the suit properties as per the
apportionment of share in the preliminary decree proceedings. In other words,
a final decree is only a procedure or formality to be adhered to by the trial
Court to give effect to the preliminary decree passed in the suit.
29. As far as the substantial questions of law framed in this Appeal, this
Court finds that they are only questions of facts. In exercise of power under
Section 100 of Code of Civil Procedure, this Court is legally estopped from re-
appreciating the facts of the case. As far as question of law No.1 is concerned,
admittedly, with regard to the Advocate Commissioner’s report, the first and
second Defendants have filed their objections and taking note of those
objections, final decree was passed. As far as the larger extent of share allotted
to the Plaintiff in Item No.2 of the suit property, it must be stated that the
Plaintiff is legally entitled to a share in the properties described as item Nos. 1
to 3. However, the Plaintiff in order to avoid multiplicity of proceedings did
not opt for a share in Item Nos.1 and 3 of the suit properties on two grounds.
The first is that item No.3 of the suit property had been unceremoniously sold
by the Defendants pending suit to third parties and the sale proceeds utilised to
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themselves thereby depriving the Plaintiff to get her due share. The second is
that item No.1 of the suit property is a dwelling house where the Defendants
are residing. Therefore, the Plaintiff did not opt for her 1/3rd share in the said
items of suit properties. However, it cannot be said that the Plaintiff has no
right to claim a share in the properties in item Nos. 1 and 3. Taking note of the
relationship with the Defendants, being her brothers, the Plaintiff had not
sought for her share in Item Nos.1 and 3 being dwelling house and to avoid
multiplicity of proceedings. It is on this background, the trial Court had
granted somewhat excess extent of land to the Plaintiff in respect of Item No.2
of the suit schedule property. Item No.2 consists of 2 Acres 28 Cents of vacant
lands. If it is divided into three, each one would be entitled to 76 cents.
However, in lieu of Item No.1 and 3 the Plaintiff had been allotted 13 cents
extra in Item No.2 which on the face of it does not appear to be unequal and
unjust division. The Advocate Commissioner ought to have given the market
value of all the 3 items of suit properties and then ought to have given the
Plaintiff her due shares in terms of market value of the property. However,
failure to resort to such method by the Advocate Commissioner is less
advantageous to the Plaintiff and not to the Defendants. The Defendants failed
to raise their objection to the Advocate Commissioner report on the said aspect
and now the Defendants have no right to question it, legally or morally given
the above facts. When admittedly the Defendants have been benefited out of
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the properties described as item Nos. 1 and 3, it is illogical to still harp upon
technicalities in respect of the share allotted to the Plaintiff in item No.2 and
file the Appeal as well as the present Second Appeal. Therefore, no question
of law involved in the present case, much less substantial question of law. In
such circumstances the question of law No.1 is not a substantial question of
law for consideration. Even otherwise, such a question has to be answered
against the Appellant/first Defendant and in favour of the Plaintiff-first
Respondent. Similarly, the second question of law as to whether good and bad
soil has been divided by metes and bounds, it is a procedure which has to be
followed by the trial Court at the time of final decree proceedings and it cannot
be subjected to challenge by the first Defendant by filing an Appeal or Second
Appeal particularly when they have not raised such objections to the Advocate
Commissioner’s report at the earliest point of time. Therefore, the second
question of law also has to be answered in favour of Plaintiff-first Respondent.
30. This Court also takes note of the fact that final decree was passed
finally in the suit on 05.04.2013. As against the same, an Appeal was filed and
it was dismissed on 03.05.2015. Now, we are in the year 2024. In other
words, the fruits of the decree passed on 05.04.2013 could not be enjoyed by
the Plaintiff and it was successfully prevented by the Defendants. This Court,
therefore, only observes that it is a ploy on the part of the Appellant to delay
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the execution of the final decree and to deprive the Plaintiff to enjoy the fruits
of the final decree.
31. Even though the Appellant filed the Second Appeal on various
grounds, it is seen from the records that the first Defendant/Appellant filed
proof affidavit before the trial Court and it was taken as his examination-in-
chief. He remained absent and did not subject himself to cross-examination by
the Plaintiff. However, during trial, the Defendants filed an affidavit stating
that the first Defendant suffered heart attack and thus could not be present for
cross-examination. Subsequently, a Petition was filed before the trial Court
stating that the first Defendant met with an accident and he is unable to attend
the Court. Therefore, he sought to eschew evidence of D.W-1 submitted by
way of affidavit. Accordingly, the trial Court permitted to eschew the evidence
of D.W-1 and second Defendant was examined as D.W-1. The second
Defendant, as D.W-1 was cross-examined during which, he fairly conceded
that the Plaintiff is entitled to 1/3rd share in the family properties. It is also an
admitted fact that the Defendants did not assail the grant of preliminary decree.
When preliminary decree was not agitated, it operates as a bar to raising any
objection to it in appeal filed against final decree. In such circumstances, this
Court rejects the plea of the learned Senior Counsel for the Appellant to reject
the report of the Advocate Commissioner and to appoint a new Advocate
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Commissioner for inspecting the property in question.
32. With respect to the submission of the learned Senior Counsel for the
Appellant-first Defendant that the Appellant and the second Respondent herein
are ready and willing to purchase the share of the Plaintiff, this Court heard the
learned Counsel for the Plaintiff. This was opposed by the learned Counsel for
the Plaintiff-first Respondent on the ground that such a permission can only be
granted before the trial Court at the time of execution proceedings and not
before this Court after a period of 11 years. It is also submitted that such a plea
is raised at this stage only to delay the sale of the property by the Plaintiff. It is
further stated that the Plaintiff is already aged 84 years and she is suffering
from age related health issues. It is also stated that the son of the Plaintiff is
battling Cancer. It is therefore submitted that the Plaintiff is in urgent need of
money to protect her son’s life. If the sale of the property is further delayed, it
will be a loss to her and to her son. Therefore, the learned Counsel for the
Plaintiff-first Respondent prayed this Court not to grant any permission for the
Defendants to purchase her share of the property as it would further delay the
sale of the property.
33. It is seen that the Defendants own large extent of lands, apart from
the suit scheduled properties, around the Plaintiff’s allotted share of the suit
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properties. Therefore, the Defendants request for right of preemption to
purchase the Plaintiff’s allotted share of the suit appears to be a dilatory tactics
to prevent the Plaintiff from enjoying the fruits of the decree. After having not
raised such a plea during the final decree proceedings and now coming up with
a plea of preemptory right appears to be with mala fide intention just to deprive
their sister of her due share. Further, the properties allotted to the Plaintiff is
not a dwelling house in order to attract the provisions of Section 4 of Partition
Act or under Section 22 of Hindu Succession Act. Therefore, the rulings cited
by the Defendants do not apply to the present case. Even regarding ingress and
egress, as the Defendants own large extent of lands around the suit property
such a plea has been taken by the Defendants in order to prevent the Plaintiff
from getting her due share. Filing applications after applications at this stage
only shows their desperation not for want of any reliefs from this Court but to
deny any reliefs to the Plaintiff.
34. Regarding the contempt petition it is seen that the Plaintiff had
entered into a registered sale agreement dated 24.11.2016 with one
G.Murugesan to sell her allotted portion of suit property after the passing of
the final decree dated 05.04.2013 for valuable sale consideration. However, an
order of status quo was passed by this Court on 18.01.2017 which was
subsequently made absolute on 02.08.2017. It is seen from the additional
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typed set of papers filed by the second Defendant that the Plaintiff in
furtherance to the sale agreement appeared to have received part sale
considerations periodically on various points of time amounting to
Rs.3,75,86,500/-. Now at this point of time, if the Defendants are allowed the
right to exercise preemptory right, it might lead to multiplicity of proceedings.
Therefore, considering the plea of the Plaintiff that she is suffering from age
related issues and her son suffering from cancer and in need of money, this
Court do not intend to initiate any contempt against the Plaintiff.
35. One of the grounds of Second Appeal inter alia is that the suit
properties were not valued by the Advocate Commissioner resulting in unequal
and unjust division of shares done only based upon extent without considering
its value. As already stated supra, if the value of all the suit properties are
taken into account, invariably the Plaintiff would have got more than her
present allotment. However, the Plaintiff in order to avoid multiplicity of
proceedings magnanimously did not opt for any share in Items 1 and 3 of suit
schedule. Even in Item No.2 out of 2 Acres 28 Cents, the Plaintiff instead of
her 1/3rd share of 76 cents has been allotted 89.8 cents, in lieu of her share in
Item No.1 and 3 of the suit scheduled properties. The said allotment is not
unequal or unjust so as to consider it as perverse. The final decree based on the
said allotment is not perverse.
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36. In the light of the reported ruling relied by the earlier learned
Counsel for the Plaintiff Mr.T.S.N.Prabhakaran in the case of Mool Chand
and others vs. Deputy Director Consolidation and others reported in (1995) 5
SCC 631 and P.Lakshmanian and another vs. P.Jeyalakshmi and others
[2014 SCC OnLine Mad 672] where preliminary decree was not agitated in
Appeal and only against the final decree, the Second Appeal was filed.
Therefore, the learned Single Judge of this Court held that substantial questions
of law does not arise in final decree proceedings. The same ratio applies to the
facts and circumstances of this case also. Therefore, this Second Appeal is not
maintainable. As no question of law much less substantial questions of law is
involved in the present case, the Second Appeal is to be dismissed.
In the result, the Second Appeal is dismissed. The Judgment and
Decree dated 03.09.2015 passed in A.S.No.59 of 2013 on the file of the
Subordinate Court, Poonamallee confirming the fair and decreetal order dated
05.04.2013 passed in I.A.No.1537 of 2008 in O.S.No.173 of 1998 on the file of
the District Munsif Court, Ambattur are confirmed. No costs. Consequently,
connected Civil Miscellaneous Petitions are closed.
https://www.mhc.tn.gov.in/judis 29.11.2024 Page 25 of 27 S.A.No.939 of 2016 Index:Yes/No Internet: Yes/No Speaking Order/Non-speaking Order dh To 1. The District Munsif Court, Ambattur. 2. The Subordinate Court, Poonamallee. 3. The Section Officer, V.R.Section, High Court, Madras. https://www.mhc.tn.gov.in/judis Page 26 of 27 S.A.No.939 of 2016 SATHI KUMAR SUKUMARA KURUP, J dh Judgment made in S.A.No.939 of 2016 29.11.2024 https://www.mhc.tn.gov.in/judis Page 27 of 27