Madras High Court
A.Ramaswamy vs Periakulandai Ammal on 5 July, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 05.07.2022
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
S.A.No.729 of 2002
A.Ramaswamy ...Appellant
Vs
1.Periakulandai Ammal
2.Yasoda Ammal
3.Kalliammal
4.S.Murugan
5.Panchavarnam
6.Yasoda Ammal
7.Ellammal
8.B.Ramesh
9.R.Dharma Gounder ... Respondents
The Second Appeal filed under Section 100 of CPC, against the
judgment and decree made in A.S.No.3 of 1995 dated 30.11.2001 on the file
of the Sub Court, Vellore, dismissing the judgment and decree made in
O.S.No.36 of 1987 dated 31.10.1994 on the file of the Additional District
Munsif, Vellore.
https://www.mhc.tn.gov.in/judis
2
For Appellant : Mr.T.Ramkumar
For R1, R5 to R8 : No appearance
For R2, R3 & R4 : Ms.D.Malarselvi
JUDGMENT
The 1st defendant in O.S.No.36 of 1987 on the file of the Additional
District Munsif Court, Vellore, which suit had been filed by the 1st, 2nd, 3rd
and 4th respondents herein in their capacity as plaintiffs and which suit was
filed for partition and separate possession of the suit schedule properties
with specific relief to divide the suit schedule properties into three equal
shares and allot one share to the plaintiffs, which had been decreed on
31.10.1994 and the subsequent First Appeal in A.S.No.3 of 1995 had been
dismissed by the Sub Court Vellore by judgment dated 30.11.2001 is the
appellant herein. The Second Appeal had been filed questioning the
preliminary decree granted.
2.The Second Appeal had been admitted on the following substantial
question of law:-
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“1.Whether the Courts below ought not to have upheld the
plea of the appellant that the panchayat of 20.03.1959
wherein the husband of the plaintiff released his share and
obtained Rs.200 in view of the fact that the appellant has
settled all the debts and by means of uninterrupted long
possession the appellant has proved his title and the
absolute owner of the property and the character of the
property is not a joint family property after 20.03.1959?
2.Whether the Courts below did not err in granting a
decree of 1/3 share to the 1st plaintiff when admittedly the
other co-parcenaries are living and even assuming that
the 1st plaintiff is entitled to a share in the joint property,
even then she could be entitled to 1/5 share only?
3.Whether such exchange had the effect of superseding the
final decree?”
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3.The learned counsel for the appellant raised a contention that the
properties which are subject matter of the partition, should be divided into
five equal parts taking into consideration also two daughters of the original
owner of the properties. However, the suit had been instituted by the legal
representatives of one pre-deceased son and they had impleaded as parties
the other two sons, but had left out the two daughters. It is contended by the
learned counsel for the appellant that there was an oral partition before the
panchayat wherein, the plaintiffs / respondents herein had been paid a sum
of Rs.200/- in view of their share.
4.However, a division of properties by metes and bounds will
necessarily have to be done in manner known to law and only through a
decree passed by the Court. If the panchayat were to enter upon division of
the properties, such decision must be recorded in writing in manner stated
by law. Mere statement that property had been divided before the panchayat
is neither legally acceptable nor tenable in a Court of law.
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5.The learned counsel stated that since there were two other
daughters, the properties should have been divided into five parts and the
plaintiffs would be entitled to only 1/5th share and not 1/3rd share as claimed
by them.
6.In Ganduri Koteshwaramma v. Chakiri Yanadi, (2011) 9 SCC
788, the Hon'ble Supreme Court held as follows:
“14. A preliminary decree determines the rights and
interests of the parties. The suit for partition is not
disposed of by passing of the preliminary decree. It is by a
final decree that the immovable property of joint Hindu
family is partitioned by metes and bounds. After the
passing of the preliminary decree, the suit continues until
the final decree is passed. If in the interregnum i.e. after
passing of the preliminary decree and before the final
decree is passed, the events and supervening
circumstances occur necessitating change in shares, there
is no impediment for the court to amend the preliminary
decree or pass another preliminary decree redetermining
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the rights and interests of the parties having regard to the
changed situation.
15. We are fortified in our view by a three-Judge Bench
decision of this Court in Phoolchand v. Gopal Lal [AIR
1967 SC 1470] wherein this Court stated as follows: (AIR
p. 1473, para 7)
“7. We are of opinion that there is nothing in the
Code of Civil Procedure which prohibits the passing
of more than one preliminary decree if circumstances
justify the same and that it may be necessary to do so
particularly in partition suits when after the
preliminary decree some parties die and shares of
other parties are thereby augmented. … So far
therefore as partition suits are concerned we have no
doubt that if an event transpires after the preliminary
decree which necessitates a change in shares, the
court can and should do so; … There is no
prohibition in the Code of Civil Procedure against
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passing a second preliminary decree in such
circumstances and we do not see why we should rule
out a second preliminary decree in such
circumstances only on the ground that the Code of
Civil Procedure does not contemplate such a
possibility. … for it must not be forgotten that the
suit is not over till the final decree is passed and the
court has jurisdiction to decide all disputes that may
arise after the preliminary decree, particularly in a
partition suit due to deaths of some of the parties. …
a second preliminary decree can be passed in
partition suits by which the shares allotted in the
preliminary decree already passed can be amended
and if there is dispute between surviving parties in
that behalf and that dispute is decided the decision
amounts to a decree.”
7.It is clear from the above, that a second preliminary decree or a
further preliminary decree can be passed to readjust the shares already
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granted by the Court. The parties may take advantage of the above said
position in law. If the daughters seek a share in the property, then they may
either implead themselves as parties and seek change in the shares allotted.
8.At any rate, the two aspects which had been put up for question
namely, the division of property before the panchayat and the right of the
daughters to claim share and that the property should have been divided into
five equal shares are answered against the appellant herein. The Trial
Court, if it finds that the daughters have a share has every right to re-
examine the preliminary decree already granted. I would direct the parties to
go back to the Trial Court and file necessary application for final decree,
implead the daughters and seek examination of the preliminary decree
already granted. The Second Appeal is dismissed. No costs.
05.07.2022
Index:Yes/No
Internet:Yes/No
smv
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To
1.The Sub Court, Vellore.
2.The Additional District Munsif, Vellore.
3.The Section Officer, VR Section, Madras High Court.
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C.V.KARTHIKEYAN,J.
Smv
S.A.No.729 of 2002
05.07.2022
https://www.mhc.tn.gov.in/judis
