Madras High Court
M.Ganesan vs / on 11 December, 2023
Author: S.Srimathy
Bench: S.Srimathy
S.A.(MD).No.525 of 2017
THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.12.2023
CORAM:
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
S.A.(MD).No.525 of 2017
and
C.M.P.(MD)No.11330 of 2017
M.Ganesan ... Appellant
/Vs./
1.Susila
2.Nirmala
A.Mahamani (died)
3.Jeyalakshmi
4.Mallika Rani ...Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code against the Judgment and Decree, dated 16.12.2014, in A.S.No.1 of
2012 on the file of Additional District Sessions Court, Dindigul,
confirming the Judgment and Decree, dated 14.11.2011, in O.S.No.429
of 2002 on the file of Sub Court, Palani.
For Appellant : Mr.H.Lakshmi Shankar
*****
1/8
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S.A.(MD).No.525 of 2017
JUDGMENT
The plaintiff and the defendants are sisters and brother. Originally
the suit property was purchased by one Kamatchi Pillai who is the
grandfather of the plaintiff and defendants. The said Kamatchi Pillai had
two sons namely Iyyanperumal Pillai and Marimuthu Pillai. The said
Kamatchi Pillai had executed Will and the suit property was allotted to
Iyyanperumal Pillai and Marimuthu Pillai was allotted another property.
The said Iyyanperumal Pillai is having three daughters namely Nirmala
(D1), Suseela (plaintiff), Jeyalakshmi (D2) and Mahamani (D3). The said
Suseela filed suit for partition claiming 1/4th share. The 3rd defendant
took a plea that the property is an ancestral property. Therefore, the
plaintiff and other daughters are entitled to 1/8th share only. However,
disbelieving the case of the defendants, the Trial Court as well as the
First Appellate Court has decreed the suit granting 1/4th share.
2. The further contention of the appellant is that the son Mahamani
is living with his family in that property. Pending suit, the said Mahamani
died and his legal heirs namely Ganesan (son) who is living with his
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family and daughter M.Mallikarani (daughter) who is living in different
place, were impleading as parties. Further the appellant submitted that
the extent of the property is 1035 square feet and the same is not
divisible in metes and bounds. If it is divided in metes and bounds,
nobody can enjoy the property and the property would be useful, if it is
kept as such by one person. Therefore, the plaintiff offered to pay the
value of the shares in the suit property to the daughters, but the plaintiff
and other daughters rejected the offer. The appellant further submitted
that in a partition it is not necessary that each and every property must
be partitioned and that the parties are put in separate possession of
respective portions of properties falling to their share. But both the courts
have failed to consider the same.
3. The Learned Counsel relied on the judgment dated 23.04.2002
of the Hon’ble Supreme Court in M.L. Subbaraya Setty (Dead) and
others Vs. M.L. Nagappa Setty (Dead) by Legal Heirs reported in (2002)
4 SCC 743 wherein it was held,
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“29. The Trial court for allotting the Coffee estate and
other immovable properties only to the defendants relied upon the
underlined sentence in direction No. 4 of the earlier decision. The
direction has been misconstrued and misinterpreted by the trial
court. It is true, as contended by Mr. Shanti Bhushan, that the
direction that the plaintiff is entitled to 2/19th share in the joint
family property and that he shall be put in separate possession of
the properties giving him share by metes and bounds does not
mean that every item of the property is to be divided between co-
shares. It is correct that the only requirement is that property
allotted to each co-sharer should bear approximately the same
value as corresponds to his share. It may also not be necessary
that if the properties consist of movable and immovable
properties then each party must necessarily be given a share in
all movable and immovable properties. While effecting partition
of joint family properties, it may not be possible to divide every
property by metes and bounds. The allocation of properties of
unequal value may come to the share of a member of a joint
family at the time of effecting partition but for that necessary
adjustments have to be made. It can also happen that some of the
co-sharer on partition may not get any share in immovable
property. No hard and fast rule can be laid. It depends upon the
facts of each case. It depends upon the nature of the immovable
property and number of such properties as also the number of
members to whom it is required to be divided. Properties of a
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larger value may go to one member. Property of lesser value may
go to another. What is necessary, however, is the adjustment of
the value by providing for payment by one who gets property of
higher value. In short, there has to be equalization of shares. But
that is not what has been done by the Trial Court in the present
case. The Trial court going by the valuation of July, 1940 has
allotted shares and bonds to the plaintiff and immovable property
to the defendants and for this partition support was also sought to
be drawn from the aforequoted sentence from direction No. 4.
That was certainly not the intention. It was a case of a total
misinterpretation and misconstruction of the decree passed by
this Court which has been set right by the High Court in
judgment under appeal. It was not the direction of this Court that
in each and every number of the Coffee estate, the plaintiff should
be given 2/19th share by metes and bounds. We do not think that
the impugned judgment of the High Court also directs that.”
4. After hearing the arguments, this Court had given its anxious
consideration. It is seen that the appellant had challenged the preliminary
decree. The present plea is available to the appellant before the Court
which would consider the final decree application. The Trial Court which
would consider the final decree application shall consider the present
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plea and pass appropriate orders. If it is not divisible in metes and
bounds the appellant may submit a proposal to calculate the value of the
share and the appellant shall deposit the amount equivalent to the value
of the share. The same may be considered by the Trial Court and pass
appropriate orders.
5. With the above observations, the judgment and decree passed by
the Lower Court is confirmed with the above modification. Hence, the
second appeal is disposed of in above terms. No costs. Consequently,
connected miscellaneous petition is closed.
11.12.2023
Index : Yes / No
NCC : Yes / No
Tmg
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TO:
1. Additional District Sessions Court, Dindigul.
2. Sub Court, Palani.
3. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.SRIMATHY, J.
Tmg
Judgment made in
Dated:
11.12.2023
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