Madras High Court
Nipun Navnitbhai Mehta vs Daicy Manogari on 5 January, 2023
CRP No.4021 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.01.2023
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.No.4021 of 2017
Sreekant S.Mehta (Died)
1.Nipun Navnitbhai Mehta
2.Kumar Kantilal Mehta
3.D.Venkatesh Prasad ..Petitioner
[The petitioners 1 to 3 are
impleaded vide order dated
05.01.2023 passed in
C.M.P.No.22515 of 2022]
Vs.
1.Daicy Manogari
2.Guna David ..Respondents
Prayer: Civil Revision Petition filed under Article 227 of Constitution of
India, praying to set aside the collusive preliminary decree 7.4.2017 passed in
O.S.No.39 of 2017 on the file of the III Additional District Court, Salem, and
allow this civil revision petition.
For Petitioner : Mr.V.Nishanth
for Mr.P.Sivakumar
For Respondents : Mr.S.John Josh
for Mr.R.Muniyappan
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CRP No.4021 of 2017
ORDER
The civil revision petition has been filed as against preliminary decree
dated 07.04.2017 passed in O.S.No.39 of 2017 on the file of the III Additional
District Judge, Salem, thereby set aside the collusive preliminary decree.
2. The petitioner is the third party in the suit filed by the second
respondent herein in O.S.No.39 of 2017 for partition as against the first
respondent herein.
3. The first and second respondents are sister and brother. Both
originally filed a suit for permanent injunction in respect of the very same suit
schedule property in O.S.No.1203 of 2010 as against the deceased petitioner.
Their case is that they were born to Yesunesan and Gnanadeepam, they were
the absolute owners of the suit schedule property and they were in possession
and enjoyment of the same. The said suit property was bequeathed in favour of
the Yesunesan by one William Borthwick. The said Yesunesan and
Gnanadeepam were working as Driver and Cook for the said William
Borthwick therefore, he executed a Will in favour of the Yesunesan and
bequeathed the schedule mentioned property on 05.11.1969. On the strength of
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CRP No.4021 of 2017
the said Will, the respondents father became absolute owner of the suit
property. After demise of their father and mother, the respondents became
absolute owners of the suit property since other children already had executed a
Release Deed in favour of them by a Release Deed dated 29.09.2010 and
11.10.2010 respectively thereby relinquished their share in the suit property.
4. The case of the petitioner, since deceased is that the respondents have
no right or title over the suit schedule property. The petitioner is the original
owner of the suit property and originally the said property belonged to one
William Borthwick. By an registered Sale Deed dated 04.04.1950, the said
William Borthwick sold away the properties except the suit property to one
Devanesan. The suit property was bequeathed in favour of Yesunesan by a
registered Will dated 05.11.1969. The said Yesunesan is none other than the
son of Devanesan. After demise of the said Devanesan, all the legal heirs of the
said Devanesan including the respondents' father namely Yesunesan, sold out
the entire property including the suit schedule property in favour of Navnit
S.Mehta, Harshkhan S.Mehta and Anitha S.Mehta by a registered sale deed
dated 11.07.1981.
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CRP No.4021 of 2017
5. Thereafter, the said Navnit S.Mehta died on 06.01.1987 leaving a Will
in favour of his sons namely Nipum N.Mehta and Hariharan S.Mehta.
Thereafter, by a registered Partition Deed dated 29.07.1994, the said property
was allotted in favour of Anitha S.Mehta. She died on 21.12.2000 leaving
behind her husband namely the deceased petitioner herein. Even while the
father of the respondents herein was alive, he never challenged those things in
the manner known to law. The respondents claimed the suit property only
through a Will dated 05.11.1969 whereas the suit property was sold out by the
said William Borthwick as early as on 04.04.1950 in favour of the said
Devanesan. The said suit was dismissed by the Principal District Munsif,
Salem, by a judgment and decree dated 09.10.2014.
6. A perusal of the said judgment and decree also revealed that when the
deceased petitioner raised a cloud over the property, the respondents filed a
petition seeking amendment of plaint to include the prayer of declaration in
respect of the suit schedule property. However, it was dismissed and confirmed
by this Court. Aggrieved by the same, the respondents also preferred an appeal
suit in A.S.No.5 of 2015 and the same was also dismissed by the Principal
Subordinate Court, Salem, by a judgment and decree dated 08.04.2015.
Aggrieved by the same, they also filed second appeal before this Court in
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CRP No.4021 of 2017
S.A.No.270 of 2016 and the same was also dismissed by a judgment and decree
dated 18.07.2016. After dismissal of the second appeal, the respondents,
suppressing the entire facts, had collusively filed a suit for partition in respect
of the very same property among themselves.
7. The second respondent is the plaintiff and the first respondent is the
defendant in the present suit filed in O.S.No.39 of 2017 for partition. It is
nothing but a collusive suit in respect of the very same property. On perusal of
counter affidavit filed by the respondents in this civil revision petition revealed
that again they had taken very same stand as taken in the earlier suit for
injunction in O.S.No.1203 of 2010. Further revealed that the deceased
petitioner was not the party to the suit for partition and he was a third party to
the suit. Aggrieved by the judgment and decree passed in partition suit in
O.S.No.39 of 2017, he ought to have filed an appeal suit. When there is appeal
remedy available he cannot invoke Article 227 of Constitution of India.
Normally, it is true that when there is an appeal remedy available, the party
cannot invoke Article 227 of Constitution of India. Wherever there is abuse of
process of law, this Court can exercise its power under Article 227 of
Constitution of India.
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CRP No.4021 of 2017
8. In this regard, it is relevant to rely upon the Judgment reported in
(2022) 1 CTC 505 in the case of Rt.Rev.Timothy Ravinder Dev Pradeep Vs.
Rev. Charles Samraj and other., and this Court, after analysing the various
Judgments of the Hon'ble Supreme Court of India, held that the availability of
appeal remedy is not a blanket bar or total bar for invoking the constitutional
remedy under Article 226 and 227 of Constitution of India.
9. Further in another Judgment reported in (2019) 9 SCC 538 in the case
of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and others Vs.
Tuticorin Educational Society and others., the Hon'ble Supreme Court of
India held that the availability of appeal remedy in terms of the provisions of
CPC, may have to be construed as a near total bar. In the case of
L.Chandrakumar Vs. Union of India reported in (1994) 2 SCC 401, the
Hon'ble Supreme Court of India held that Article 226 and 227 form part of the
basic structure of the Constitution and the power of High Court under them
cannot be abrogated even by a Constitutional Amendment.
10. Further, this Court also held that the jurisdiction under Article 227 of
the Constitution of India is far more wider than the jurisdiction under Article
226 of the Constitution of India and the power of superintendence for the High
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CRP No.4021 of 2017
Court can be used even to correct the errors which are patent of manifest. It is
clear that a discretion to exercise a constitutional power/power of
superintendence deposited in it under Article 227 of the Constitution of India is
with a Court.
11. Therefore, in the case on hand as stated supra the respondents
completely suppressed the facts that they had already filed a suit for injunction
and the same was dismissed and confirmed by this Court in O.S.No.1203 of
2010 and filed the present suit for partition as if they are the owners of the
property. It is nothing but a collusive suit and as such, the judgment decree
cannot be sustainable in respect of the suit property. Though they have not
approached the Court with clean hands as having been sold the entire suit
properties by a registered Sale Deed dated 11.07.1981 the legal heirs of the said
Yesunesan. The respondents herein have no right or title over the property.
That apart, the other legal heirs of the said Yesunesan namely Billy Sunday and
Eval Rani had executed a Release Deed dated 29.09.2010 thereby relinquished
their shares in respect of the suit property also non-est in the eyes of law since
they have also no title or right over the suit property. On the strength of the said
Release Deed the respondents collusively filed the present suit for partition in
respect of very same subject property and obtained decree behind the back of
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CRP No.4021 of 2017
the deceased petitioner. Therefore, the orders obtained by misusing the
machinery of the Court of law, to obtain unlawful gain, it would lead to serious
miscarriage of justice.
12. In view of the above, the collusive preliminary decree passed by the
III Additional District Judge, Salem, cannot be sustained and it is liable to be
set aside. Accordingly, the judgment and decree dated 07.04.2017 passed in
O.S.No.39 of 2017 on the file of the III Additional District Judge, Salem, is
hereby set aside.
13. In fine, the civil revision petition stands allowed. There shall be no
order as to costs.
05.01.2023
(2/2)
Speaking/Non-speaking order
Index : Yes/No
ata
To
1.The III Additional District Judge,
Salem, Salem District.
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CRP No.4021 of 2017
G.K.ILANTHIRAIYAN.J,
ata
CRP.No.4021 of 2017
05.01.2023
(2/2)
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