K.T.Dayalan v. K.T.Kirubanandam

IN THE HIGH COURT OF JUDICATURE OF MADRASDATED: 07.08.2008CORAM:THE HONOURABLE MR. JUSTICE G.RAJASURIAA.S.No.96 of 2003 andC.M.P.Nos.13312, 13313 and 14552 of 2004K.T.Dayalan... AppellantVs. 1. K.T.Kirubanandam2. Vasanthi Durairajan3. Dhanammal4. K.T.Vadivarasan5. K.T.Ravi... RespondentsAppeal against the judgment and decree of the learnedSubordinate Judge, Gudiyatham in O.S.No.114 of 1999 dated30.01.2002.For appellant :: Mr.A.ChidambaramFor respondents :: Mr.S.Sadashram for R1 Mr.N.S.Mukundan for M/s.A.Prabhadevi for R2 Mr.P.Arivudainambi for RR4& 5JUDGMENT This appeal is focussed as against the judgment anddecree dated 30.01.2002 passed by the learned Subordinate Judge,Gudiyatham in dismissing the suit in O.S.No.114 of 1999 relatingto items 2 to 4 and decreed the suit in respect of item No.1ordering partition. For convenience sake, the parties are referredto here under according to their litigative status before the trialCourt.2. In view of the fact that this appeal is focussed only asagainst the first item of the suit property and not relating to thedismissal of the suit relating to items 2 to 4, the other detailsrelating to items 2 to 4 in the plaint as well as in the writtenstatement are not set out here under. https://hcservices.ecourts.gov.in/hcservices/

3. Niggard and bereft of details, the case of the plaintiffs,as stood exposited from the plaint, could be portrayed thus:-(a) one Deceased Tharani Mudaliar had four sons, namely, theplaintiffs 1 to 3 and D1 and one daughter, namely D2. His wife isD3. The suit properties described in the schedule of the plaintand other properties belonged to the joint family of the saidK.B.Tharani Mudaliar, except the properties described in theschedule of the plaint, relating to other properties, there arose aRegistered Partition Deed dated 30.6.1976 among the deceasedTharani Mudaliar and plaintiffs 1 to 3, the first defendant and 2rddefendant and the property by name Murugan Talkies-the first itemof the suit property, was kept in common among the plaintiffs, D1and late K.B.Tharani Mudaliar. (b) The said Tharani Mudaliar, during his life time orallysold his undivided 1/5th share in the first item in favour of the3rd plaintiff on 30.11.1988. The remaining items 2 to 4 as founddescribed in the suit schedule were kept in common among theTharani Mudaliar and his sons and daughter. Consequent upon hisdeath, Tharani Mudaliar's 1/6th share in those item Nos. 2 to 4devolved upon equally among the plaintiff and D1 to D3, so to sayhis sons, daughter and wife. The said Murugan Talkies could not berun for a few months anterior to the filing of the suit, due to theobstruction caused by D1. Hence, the suit for partition and formesne profits.4. Per contra, denying and refuting, challenging andimpugning the allegations/averments in the plaint, D1 filed thewritten statement, the gist and kernel of it would run thus:The oral sale as alleged to have been effected by TharaniMudaliar relating to his 1/5 th share in the first item of the suitproperty to the third plaintiff is nothing but an utter falsehood.The defendants 2 and 3 did not claim any share in the first item.As such the first item of the suit property should be divided intofour shares only and the plaintiffs 1 to 3 and D1 should beallotted 1/4th share each. The said theatre described in the firstitem of the suit property cannot be divided into five shares bymetes and bounds and there are provisions in the Partition Act forconducting public auction. If done so, it would fetch a sale priceof Rs.75 lakhs. D1 is for conducting public auction. Accordingly,the defendant No.1 prayed for allotment of shares.5. The second and third defendants remained ex parte beforethe trial Court. https://hcservices.ecourts.gov.in/hcservices/

6. The trial Court framed the relevant issues. Duringtrial, on the side of the plaintiffs, the third plaintiff examinedhimself as PW1 along with one Balaraman PW2 and Ex.A1 was marked.On the side of the defendants, D1 K.T.Kirubanandam examined himselfas DW1 along with one Beemaraj as DW2 and Exs.B1 to B4 weremarked. The trial Court ultimately dismissed the suit relating toitems 2 to 4 and decreed the suit only in respect of item No.1ordering partition and allotting ¼ th share each in favour ofplaintiffs 1 to 3 and D1.7. Being aggrieved by and dissatisfied with the judgment anddecree of the trial Court, the third plaintiff/appellant preferredthis appeal on various grounds, the pith and marrow of them couldbe set out thus:The trial Court failed to uphold the oral saleeffected by deceased Tharani Mudaliar during his lifetime relating to his 1/5th share in the first item of thesuit property, viz., theatre property in favour ofplaintiff No.3. Accordingly, he prayed for the modification of the judgment anddecree of the trial Court.8. The points for consideration are as to:-1. Whether the appellant/third plaintiffeven in this first appeal, which is against thepreliminary decree passed by the trial courtcan invoke the provisions of the Partition Actand seek for auction to be conducted among theco-sharers ?2. Whether the trial court was justifiedin not allotting any share in favour of D2,Vasanthi Durairajan?3. Whether there is any infirmity in thejudgment and decree of the trial court?9. Heard the learned counsel appearing for the parties.Point No.1:10. At the outset itself, the learned counsel for theappellant/plaintiff No.3 would advance his argument to the effectthat even though before the trial Court the plea of oral sale of https://hcservices.ecourts.gov.in/hcservices/ the share of his deceased father in favour of the appellant wasput forth nonetheless, he is not pressing that plea now and thatthe trial Court also has held as against such plea of oral sale.The crucial point for adjudication before this Court is relating tothe right of the appellant/plaintiff No.3 seek for conductingauction concerning the theatre viz., the first item of the suitproperties, even while this appeal is pending before this Court.11. In the written statement D1 at para No.13, averred thus:"13. This defendant submits that the theatre cannotbe divided into 5 shares by metes and bounds because isis incapable of division into five shares and therecannot be a theatre after it is divided into five shares.Therefore only the provision of Partition Act has to beapplied and the theatre should be brought for publicauction in which event the sale will be nothing less thanRs.75,00,000/-. This defendant is prepared for a saleunder the Partition Act and for an open public auction.The claim by the plaintiffs that they are willing to take4/5th share in item No.1 and 21/36 share in item No.2 isonly an eye wash. They have deliberately undervalued thetheatre."12. Placing reliance on the aforesaid excerpt, the learnedcounsel for the appellant would contend that D1 is precluded fromcontending otherwise that the theatre property should not beauctioned among the co-sharers; instead of driving the partiesonce again to the lower Court and getting their remedies, whichwould be time consuming, this Court itself could permit theappellant to invoke the relevant provision of the Partition Act sothat either of the co-sharers could bid in the auction andaccordingly purchase the theatre property, which would bebeneficial for all the co-sharers. In support of his contention,he also cited various precedents.13. Per contra, the learned Advocates appearing for the firstplaintiff and D1 in unison would oppose the aforesaid prayer, whichemanated from the side of the appellant-plaintiff No.3 and contendthat only during final decree proceedings those matters as putforth by the learned counsel for the appellant could be consideredand this appeal can be disposed of by dismissing it andconsequently confirming the preliminary decree of the trial Court.14. D2, Vasanthi Durairajan, the daughter of TharaniMudaliar, who remained exparte before the trial Court but nowrepresented through her counsel would contend that D2 being thedaughter of Tharani Mudaliar is entitled to the share of Tharani https://hcservices.ecourts.gov.in/hcservices/ Mudaliar as his Class-I heir under the Hindu Succession Act. It istherefore just and necessary, in this case, to find out as towhether this Court itself could at this stage permit the appellantto move this Court for appointment of an Advocate Commissioner toconduct auction sale among the co-sharers under the Partition Act. 15. At the hearing it transpired that even as on the date offiling the appeal itself, the defendant No.3 Dhanammal died and allthe legal heirs of Dhanammal are already on record and as such,that would not in any way change the legal position. I make itclear that, consequent upon the death of Dhanammal, the respectiveshares of other sharers would get enlarged correspondingly.16. The learned counsel for the appellant cited the decisionof the Hon'ble Apex Court reported in 1991 AIR SCW 217 (MalatiRamchandra Raut and others vs. Mahadevo Vasudeo Joshi and others).An excerpt from it would run thus: "6. The learned Single Judge noticed that there wasno dispute between the parties as regards theirrespective shares in the suit properties. It was also nolonger in dispute that the properties were incapable ofdivision by metes and bounds and that they had,therefore, to be sold. The defendants having soughtleave of the Court to purchase the shares of theplaintiffs in the properties at a valuation, those shareshad to be valued as on the date of their so seeking theleave and not as on any subsequent date. The learnedJudge held that once the defendants exercised their rightunder Section 3(1) of the Act, their rights, as betweenthemselves and the plaintiffs, were crystallised andconcluded. He, however, stated that he did not pass anydecree in the suit, but only directed the valuation ofthe properties with reference to the date on which thedefendants sought leave of the Court under S.3 in orderthat, upon conclusion of the proceedings, the shares ofthe plaintiffs in the properties could be sold to thedefendants at the price so determined."(emphasis supplied)A bare perusal of the said judgment would clearly indicate thatthe concerned co-sharer is at liberty to move the Court forbringing the property for sale among the co-sharers in the event ofthe Court finding that the property concerned was incapable ofdivision. No doubt, the learned counsel for theappellant/plaintiff No.3 would place reliance on para No.13 of thewritten statement and contend that already D1 clearly stated thatthe property was indivisible and that there was nothing more to bedecided about indivisibility and hence this Court could straight https://hcservices.ecourts.gov.in/hcservices/ away order for auctioning the first item of the suit property amongthe co-sharers. There is no dictum in the Hon'ble Apex Courtdecision to the effect that even while the High court hearing theappeal as against the preliminary decree could invoke theprovisions of the Partition Act and direct an Advocate Commissionerto be appointed to conduct auction among the co-sharers relating toan item of suit property is concerned.17. The learned counsel for the appellant also placedreliance on the decision of the Hon'ble Orissa High Court reportedin AIR 1991 Orissa 83 (Fakir Khan v.Kuanr Khan and others). Anexcerpt from it would run thus."2. The defendant took the stand in the writtenstatement that the plaintiff had relinquished her shareby taking some money and the defendant had constructedhis house with the full knowledge of the plaintiff on thedisputed land. It was also averred that the plaintiffwas never in possession of the disputed property and theKhasmal authorities granted lease in favour of thedefendant after due enquiry and consequently thedefendant had become the absolute owner of the property.The learned trial Judge on appreciation of the evidencebefore him, disbelieved the story of relinquishment ofshare by the plaintiff as well as receipt of money fromthe defendant. It was found that there being noregistered document relating to relinquishment asrequired under S.17 of the Registration Act, there hadbeen no proof of such relinquishment. It was alsoobserved that the defendant had not right of preemption.On these findings, a preliminary decree was passeddeclaring the plaintiff's 1/3 rd interest in the suitproperties. It was further directed that the portion onwhich the plaintiff's residential house situated shouldbe allotted to her. The defendant assailed the judgmentand decree in appeal which was registered as First AppealNo.16 of 1973 but that was dismissed by the High Court on12.12.76. Thereafter, the plaintiff filed an applicationfor drawing up of the final decree. In course of thefinal decree proceeding, the original plaintiff havingdied, her legal heirs were substituted. A Civil CourtCommissioner was deputed to effect the partition and thesaid Civil Court Commissioner submitted his reportstating therein that on actual measurement it was foundthat the defendant had encroached upon Ac.0.007 decimalsof land belonging to the plaintiff and therefore theplaintiff was in actual possession of only A.O.21 dec.3Kadis; whereas the defendant was in possession of Ac.O.34dec.3 Kadis. This report was dated 1.1.80. No objection https://hcservices.ecourts.gov.in/hcservices/ to the said report having been filed, on perusing thesaid report, the learned trial Judge accepted the sameand made the decree final by order dated 31.3.80. It isagainst this final decree, the present appeal has beenpreferred."A mere perusal of it would exemplify that the ratio decidendi inthis case also, is not that straight away, while the firstAppellate Court is hearing the appeal, could entertain anyapplication for ordering partition of the first item of the suitproperty on the ground that the property is indivisible.18. The learned counsel for the appellant also placedreliance on AIR 1953 Madras 320 (Yandapalli Venkataraju vs. HussainShah and others). An excerpt from it would run thus:"In S.A.No.4 of 1942, which arose out of O.s.No.124of 1930 in the Sub Court, Kakinada, this Court passed adecree inter alia directing a partition of item 1 of theplaint schedule into three equal shares and awarding theplaintiff an one-third share and the other contestingparty who is the petitioner before me, a two-third share.Subsequent to the decree of this Court, the petitionerfiled an application in the court below purporting to beunder Ss.2 and 4 of the Partition Act, Act IV of 1893,praying that the provisions of that Act may be applied tohim. Only the prayers were not happily worded and it isnow conceded by Mr.Bhimasankaram, learned counsel for thepetitioner, that the only provision under which theapplication was really sustainable was S.2 of the Act.The learned Subordinate Judge did not go into the meritsand decide whether S.2 of the Partition Act applied andthe whether the petitioner was entitled to invoke itsprovisions in the circumstances of this case because heconsidered that the decree of the High Court precluded himfrom going into the matter. In other words, because theHigh Court had directed a division of the property, hethought an application invoking the provisions of thePartition Act was not competent thereafter. In this hewas obviously in error.2. There is clear authority of this Court in "KadirBatcha Sahib v.Abdul Rahman Sahib", 24 Mad 639 that S.2,Partition Act, can be applied though a preliminary decreedefining the share of a plaintiff and directing partitionhad been passed. The learned Judges pointed out that theAct can be applied until the scheme of partition has beenfinally approved, i.e., until a final decree has been https://hcservices.ecourts.gov.in/hcservices/ passed. I therefore set aside the order of the learnedJudge dismissing the application as not sustainable. Hewill restore the petition to his file and proceed to dealwith it as an application at this stage on the merits ofthe application. There will be no order as to costs.3. The petition will be disposed of expeditiouslywithout granting any adjournment."A mere reading of it would highlight that the said decision is ona different point as in that case, the lower court misunderstoodthe High Court's order as though the High Court directed the lowerCourt to effect the division and not to conduct auction.Thereupon, His Lordship the then Hon'ble Chief Justice Rajamannar,clarified the position and highlighted that despite High Courtdirected for division of the property, the lower court couldentertain an application for auction under Section 2 of thePartition Act. As such, the said cited decision is also notapplicable to the facts and circumstances of this case.19. The learned counsel also cited a decision of the Hon'bleApex Court reported in AIR 1978 SC 845 (Badri Narain PrasadChoudhary and others v. Nil Ratan Sarkar). An excerpt from it wouldrun thus: "13. It will be seen from the above analysis thatthe request contemplated in No.(i) is a sine qua non fordirecting a sale because such a request necessarilysignifies his willingness to have his share convertedinto money, so that the co-sharers may, by means of theprocedure provided in S.3 buy them out. The request forsale envisaged by S.2 must be one for public sale. If nosuch request has been made to the Court, S.3 cannot bebrought into operation." This decision also is not on the point relating to the powers offirst Appellate Court to entertain straight away the applicationunder the Partition Act for conducting auction among co-sharersand that too, when the appeal is only as against the preliminarydecree. However, the learned counsel for the appellant wouldclarify the position by highlighting that the Court can orderowelty to be paid by the sharer, who takes more share than theother sharers. There is no quarrel over such a preposition. Assuch, ultimately what transpires in this appeal is that virtuallythe appellant could not canvass any point so as to highlight thatthe trial Court committed any error either in law or in fact inpassing the preliminary decree. However, the grievance of theappellant is that if once again, the matter goes before the trialCourt for obtaining final decree, it would be a time consuming one. https://hcservices.ecourts.gov.in/hcservices/ I am of the considered opinion that the first Appellate Court whilehearing the contentious concerning the preliminary decree couldnot extend its jurisdiction and thereby perform certain acts,which could be performed only by the trial Court. 20. At this juncture, my mind is redolent with the common orgarden principle in the field of civil law that right of appealis a valuable right and it cannot be eroded under anycircumstances. In the event of the appellant/plaintiff No.3 hereinfiling an application invoking the appropriate provision of thePartition Act before the trial Court, the trial Court is expectedto hear both the sides and pass orders thereon and act accordingly.If any one of the parties is aggrieved by it, he having the rightto agitate before the higher forum. Hence, I am of the consideredopinion that taking into consideration the time factor alonestraight away this Court cannot act as a Court of first instance.21. The learned counsel for the appellant would cite variousfacts as if the appellant is a major shareholder as of now,because he allegedly purchased the share of one other sharer,viz., the second plaintiff Ravi Vendan and that he became entitledto half share. I am of the opinion that merely based on suchoral representation from the learned counsel, this Court cannotarrive at a conclusion that he is a major shareholder. These areall matters to be placed only before the lower Court during finaldecree proceedings. 22. However, I make it clear that it is open for theappellant to file necessary application before the lower courtduring final decree proceedings and press for the same and in suchan event, the trial Court shall see to it in the facts andcircumstances of the case and dispose it of on merits within aperiod of three months. As such, with the above observation, thisappeal is dismissed.Point No.2:23. The next point for consideration is as to whether theshares allotted by the trial Court is in order.24. All the learned advocates appearing for the parties inunison would clearly and categorically agree that consequent uponthe death of Tharani Mudaliar, his share in the first item of thesuit properties should be taken to have devolved, as per HinduSuccession Act on all his legal heirs, viz., his four sons, onedaughter and his wife equally. However, the trial Court has notadverted to that fact. Hence, modification of the decree passed bythe trial court relating to the first item of the suit properties,is warranted. Tharani Mudaliar and his four sons constituted the https://hcservices.ecourts.gov.in/hcservices/ co-parcenery and as such during his life time, each one of the co-parcener was entitled to 1/5 th share in the theatre, viz., thefirst item of the suit properties and on the death of TharaniMudaliar his 1/5 th share is deemed to have devolved upon hiswife, four sons and daughter equally. Consequent upon the death ofDhanammal, the mother, her share is deemed to have devolved uponher sons and daughter equally. Accordingly, it shall standmodified. 25. Civil Miscellaneous Petition Nos.13312 and 13313 of 2004were filed by the first respondent seeking his appointment as theReceiver for Murugan Talkies, Gudiyatham being subject matter inO.S.No.114 of 1999 on the file of the Sub Court, Gudiyatham and toremove him as Receiver for Murugan Talkies, Gudiyatham, beingsubject matter in O.s.No.301 of 1993 on the file of the Sub Court,Vellore (now O.S.No.114 of 1999 on the file of the Sub Court,Gudiyatham) pursuant to the order dated 17.10.1994 made inI.A.No.266 of 1993 in O.S.No.301 of 1993 on the file of the Subcourt, Vellore.26. Civil Miscellaneous Petition No.14552 of 2004 is filed bythe fifth respondent to modify the order made in I.A.No.266 of 1993in O.S.No.301 of 1993 dated 17.10.1994 on the file of Sub Court,Vellore and appoint the petitioner as receiver for Murugan Talkies,Gudiyatham (being subject matter in O.S.No.301 of 1993 on the fileof the Sub Court, Vellore since transferred to the Sub Court,Gudiyatham and renumbered as O.S.No.114 of 1999). 27. I am of the considered opinion that the parties are atliberty to litigate over it and seek appropriate remedy relating tosuch matters before the lower Court. At present, these CMPs areclosed in view of the disposal of the appeal itself.28. Relating to items 2 to 4 , the trial Court clearly foundthat those items were sold jointly and that the parties had noobjection for dismissing the suit concerning those items andaccordingly part of the suit was dismissed and as against which,none of the parties preferred appeal. 29. The trial Court has not specifically passed any orderrelating to enquiry into future mesne profits under Order 20 Rule12 of Civil Procedure Code. It is an admitted fact that alreadyparty receiver was appointed by the trial Court and relating towhich also there are lot of controversies among the parties. 30. The trial Court has not given any direction relating tothe enquiry into future mesne profits as per Order 20 Rule 12 ofCivil Procedure Code. I make it clear that in partition suits andthat too, when Receiver is appointed, the parties are at liberty to https://hcservices.ecourts.gov.in/hcservices/ move the trial Court by filing appropriate application under Order20 Rule 12 of CPC and under such other provisions of Code of CivilProcedure seeking remedy as contemplated thereunder relating tomesne profits and sharing of income. In such an event, the lowerCourt is bound to decide who shall pay the income in favour of theother.28. The appeal is dismissed with the modification of thedecree passed by the trial court relating to the first item of thesuit properties as under:"Tharani Mudaliar and his four sons constituted theco-parcenery and as such during his life time, each oneof the co-parcener was entitled to 1/5 th share in thetheatre, viz., the first item of the suit properties andon the death of Tharani Mudaliar his 1/5 th share isdeemed to have devolved upon his wife, four sons anddaughter equally. Consequent upon the death ofDhanammal, the mother, her share is deemed to havedevolved upon her sons and daughter equally." However, there shall be no order as to costs. Consequently, theconnected miscellaneous petitions are closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.vj2To1. The Subordinate Judge, Gudiyatham2. The Section Officer,VR Section,High Court, Madras6 ccs to Mr.A. Chidambaram, Advocate, SR. 43308, 433091 cc to Mr.P. Aivudainambi, Advocate, SR. 436051 cc to Mr.S. Sadashram, Advocate, SR. 43598A.SNo.96 of 2003MDR (CO)kk 2/9