Madras High Court
Mr.Carlye D Silva vs Smt.S.S.M.Priya on 31 January, 2022
CRP.NPD.Nos.1077/2019 & 1124/2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
CRP.NPD.Nos.1124/2015 &1077/2019 & CMP.Nos.1/2015 & 7084/2019
[Virtual Mode]
Mr.carlye D Silva .. Petitioner in
both Revision Petitions
Vs.
Smt.S.S.M.Priya .. Respondent
in both Revision Petitions
Prayer in CRP.NPD.No.1124/2015:- Civil Revision Petition filed under
Article 227 of the Constitution of India as against the order and decreetal
order of appointment of Advocate Commissioner made in IA.No.217/2013
in OS.No.1010/1991 on the file of the learned III Additional Subordinate
Judge, Coimbatore dated 05.06.2014.
Prayer in CRP.NPD.No.1077/2019:- Civil Revision Petition filed under
Article 227 of the Constitution of India to set aside the order dated
11.01.2018 made in IA.No.301/2015 in IA.No.217/2013 in
OS.No.1010/1991 by the learned III Additional Subordinate Judge,
Coimbatore.
CRP.NPD.Nos.1077/2019 & 1124/2015
For Petitioner in
both Petitions : M/s.L.Maithili
For Respondent in
both Petitions : Mr.R.Bharanidharan
COMMON ORDER
(1) Since the issue involved in the above Civil Revision Petitions is
common and interlinked, both the petitions are taken up together and
are disposed of by this common order.
(2) The above Civil Revision Petitions have been preferred by the
revision petitioner/plaintiff in the suit in OS.No.1010/1991 as against
the order dated 11.01.2018 in IA.No.301/2015 in IA.No.217/2013 in
OS.No.1010/1991 on the file of the learned III Additional
Subordinate Judge, Coimbatore and the order dated 05.06.2014
made in IA.No.217/2013 in OS.No.1010/1991.
(3) Brief facts that are necessary for the disposal of these revision
petitions are as follows.
(4) The revision petitioner herein filed a suit in OS.No.1010/1991 on the
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file of the Sub Court, Coimbatore, for partition and separate
possession of his 1/3rd share in the suit property and for appointment
of an Advocate Commissioner to divide the property in the suit
schedule as per the terms of preliminary decree.
(5) The plaintiff and the 1st defendant in the suit are brothers and they
are the sons of the 2nd defendant. The suit property belonged to the
mother of the plaintiff who is also the wife of the 2nd defendant. It is
admitted that during the pendency of the suit, the father, namely, the
2nd defendant died. As a result, the plaintiff and the 1st defendant
became the joint owners, entitled to 1/2 share each in the suit
property. The suit was disposed of on 28.08.2001 on the basis of a
Joint Memo of Compromise filed by the plaintiff and the 1st
defendant. The plaintiff and the 1st defendant were given equal half
share in the suit schedule property, as per the preliminary decree
which was based on the Joint Memo of Compromise vide judgment
and decree dated 28.08.2001. Despite a preliminary decree was
passed in the year 2001, the property is not yet divided by metes and
bounds and the litigation is pending for the past more than two
CRP.NPD.Nos.1077/2019 & 1124/2015
decades. It is admitted that the respondent in the revision petitions
is a third party to the suit in OS.No.1010/1991. She purchased the
half share from the 1st defendant and stepped into the shoes of the 1st
defendant. As per the Sale Deed dated 21.01.2009, the respondent
in the Civil Revision Petitions purchased the property through the
Power of Attorney Agent of the brother of the revision petitioner
herein.
(6) Thereafter, the respondent herein filed IA.No.217/2013 in
OS.No.1010/1991 for appointment of an Advocate Commissioner to
divide the suit property in terms of the preliminary decree as
between the petitioner and the respondent herein. The said
application was opposed by the revision petitioner herein on
untenable grounds. It is contended by the revision petitioner that the
application for appointment of the Advocate Commissioner is not
maintainable. It is further stated that the respondent is not bona fide
purchaser and therefore, he cannot claim any equity in the matter of
allotment. It is also stated that the suit property is indivisible and
that a division of suit property to two shares will render the property
CRP.NPD.Nos.1077/2019 & 1124/2015
useless. It was therefore, suggested by the revision petitioner that
the entire property can be allotted to one of the sharers by
compensating the other sharer. The application for appointment of
Commissioner for effective division was allowed by the Trial Court
holding that the respondent who has purchased the property from the
petitioner's brother with regard to his undivided half share, is entitled
to file a petition for appointment of the Advocate Commissioner for
division of property by metes and bounds. The Advocate
Commissioner was directed to inspect the property and measure the
same with the assistance of a qualified Surveyor and an Engineer to
divide the suit property in terms of the preliminary decree.
Aggrieved by the order allowing the application for appointment of
the Advocate Commissioner, the revision petitioner has preferred the
revision in CRP.NPD.No.1124/2015.
(7) The revision petitioner, during the pendency of the application for
appointment of the Advocate Commissioner, filed IA.No.301/2015
requesting the Trial Court to direct the respondent herein to sell her
undivided half share to the revision petitioner herein for the value to
CRP.NPD.Nos.1077/2019 & 1124/2015
be fixed by the Court. In the affidavit filed in support of the
application, the revision petitioner stated that the suit ''A'' schedule is
a dwelling house in which the revision petitioner is residing and that
the respondent who is a purchaser pendente lite, is not entitled to
joint possession with the revision petitioner. It is to be noted that
the petitioner has also stated that the property is practically
indivisible.
(8) It is now admitted before this Court that the suit property which has
to be divided between the parties is measuring an extent of 18 cents
[approximately 7840.8 sq.ft.]. In an extent of 18 cents, a building is
constructed covering an extent of 1432 sq.ft.
(9) This Court, on an earlier occasion, directed both parties to file typed
set containing Valuation Reports for both the building and the land,
so that this Court will be in a position to appreciate the possibility of
an amicable division between the parties.
(10) The revision petitioner has given a Valuation Report issued by a
Government approved Valuer indicating that the prevailing market
price for the land is Rs.147.09 lakhs. Though the building was
CRP.NPD.Nos.1077/2019 & 1124/2015
valued by the revision petitioner for a sum of Rs.21,48,000/-, after
allowing depreciation, the total value of the building is stated to be
Rs.6,44,400/-. The petitioner was therefore, offered to pay a sum
of Rs.76.77 lakhs towards the share of the respondent.
(11) The learned counsel for the respondent also filed a Valuation Report
of a Chartered Engineer. As per the Valuation Report of the
respondent, the undivided 50% share of the property has been
valued at Rs.4.55 Crores.
(12) From the Valuation Reports and the submissions of the learned
counsel on either side, this Court is unable to see that the property is
indivisible.
(13) The Commissioner was appointed by the Lower Court to divide the
property by metes and bounds. Whiles dismissing the application
filed by the revision petitioner to direct the sale of property by the
respondent in favour of the petitioner herein, the Lower Court
observed that the Commissioner can be asked to suggest not only the
mode of division of property equally among the parties, but also to
suggest the value so that any one of the parties can be given the
CRP.NPD.Nos.1077/2019 & 1124/2015
whole property if the property is found indivisible by directing the
person who takes the property to pay the value towards half share.
(14) From the Valuation Report filed by the parties, this Court is unable
to find a possible settlement among the parties. Though it is was
suggested to the parties that the parties are required to value the
property strictly as per the market value, the petitioner has filed the
report from the Government approved Valuer indicating the
prevailing market value of the property as Rs.1,53,53,000/-.
However, the learned counsel for the petitioner is unable to accept
the proposal that the petitioner will get the value towards his share in
respect of the property which will be taken by the respondent upon
paying the same amount of Rs.76.77 lakhs as indicated in the
Valuation Report produced by him. Therefore, the bona fides of the
petitioner is doubtful.
(15) The application filed by the revision petitioner can be considered
only if the Court comes to the conclusion that the property is not
divisible on ground. This Court is unable to find any reason why the
property of vacant land measuring an extent of 18 cents with the
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building constructed in a small portion of land around 1500 sq.ft.,
cannot be divided by metes and bounds.
(16) The Trial Court has allowed the application for appointment of the
Advocate Commissioner for the division of the property by metes
and bounds after considering the suggestions of the parties. Unless
the Advocate Commissioner based on the local inspection and other
aspects, comes to the conclusion that the property is indivisible,
there is no scope for considering the application filed by the revision
petitioner for the allotment of the entire property to the revision
petitioner for the price offered by the revision petitioner. The
petitioner cannot invoke the provisions of the Partition Act unless
the Court comes to the conclusion that the property is indivisible.
(17) The Report of the revision petitioner also indicate that the revision
petitioner is greedy and has come forward with a low valuation for
the property despite the suggestion of this Court, that both parties
should come up with valuation as per the market value and that the
other side will be given an option to purchase the whole property if
any one of the party comes up with an unreasonably low value for
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the property. The application for appointment of the Advocate
Commissioner is in the interest of both sides which is a step in aid
for equal division of property among the parties.
(18) The revision petitioner though is not aggrieved by the order, has
come up with CRP.NPD.No.1124/2015 challenging the order
appointing Advocate Commissioner to twart the process of division
by metes and bounds.
(19) While expecting the Court to give a direction to allot the whole
property, the revision petitioner has come forward by offering a low
value suggesting his inclination to get the property by offering one-
third of what the respondent would give to the revision petitioner if
the respondent is given the option to purchase the property.
(20) With this background, this Court is of the view that these Civil
Revision Petitions have been preferred only to avoid division of
property by due process of law and the intention is to drag on the
proceedings so that possession of the revision petitioner can be
retained as long as possible. Since the revision petitions lack bona
fides and this Court finds that the attitude and conduct of the
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revision petitioner appears to be unreasonable, the Civil Revision
Petitions stand dismissed with a cost of Rs.25,000/- [Rupees
Twenty Five thousand only] payable by the revision petitioner to
the respondent within a period of two weeks from the date of
receipt of a copy of this order. Consequently, connected
miscellaneous petitions are closed. However, liberty is given to the
revision petitioner to invoke the provisions of the Partition Act in
case the Commissioner gives a finding that property is indivisible.
31.01.2022
AP
Internet : Yes
To
The III Additional Subordinate Judge
Coimbatore.
S.S.SUNDAR, J.,
AP
CRP.NPD.Nos.1077/2019 & 1124/2015
CRP.NPD.Nos.1077/2019 & 1124/2015
31.01.2022
https://www.mhc.tn.gov.in/judis 12
