Madras High Court
V.Eswaran vs Velmurugan on 22 October, 2024
Author: S.Srimathy
Bench: S.Srimathy
C.R.P.(MD)No.1819 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.10.2024
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
C.R.P.(MD)No.1819 of 2024
and
C.M.P.(MD)No.10251 of 2024
1.V.Eswaran
2.E.Mageshwaran
3.E.Sathees Kumar ... Petitioners
Vs.
1.Velmurugan
2.Ratnam
3.V.S.Sandip
4.S.Sevika
5.S.Murugan
6.M.Thangapandian ... Respondents
PRAYER : Civil Revision Petition is filed under Section 115 of C.P.C., against
the order, dated 13.10.2023, passed in E.A.No.1 of 2022 in E.P.No.114 of 2023 in
O.S.No.46 of 2015 on the file of the Additional District Sessions Judge,
Periyakulam.
For Petitioners : Mr.S.Ramsundarvijayraj
For R1 : Mr.P.V.Gurudevaraj
For R2 to R6 : No appearance
Advocate Commissioner : Mr.S.Mukesh
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1/9
C.R.P.(MD)No.1819 of 2024
ORDER
The present civil revision petition is filed by the defendants 6 to 8 in the
suit against the order, dated 13.10.2023, passed in E.A.No.1 of 2022 in E.P.No.
114 of 2023 in O.S.No.46 of 2015 on the file of the Additional District Sessions
Judge, Periyakulam.
2. The brief facts are that the 1st respondent herein namely Velmurugan had
filed the suit in O.S.No.46 of 2015 for recovery of money. The said Velumurugan
had granted loan to one Late.S.V.Swaminathan for which mortgage deed was
executed. In order to recover the money along with interest the suit in O.S.No.46
of 2015 was filed against the respondents 2 to 6 herein who is the wife and
children of the said Late.S.V.Swaminathan. The suit was decreed. Against which
the said Velmurugan had filed E.P.No.114 of 2023.
3. The revision petitioners herein submitted that the mortgaged property is
joint family property and partition suit is pending. One Chinnathai had filed a
partition suit in O.S.No.71 of 1985 (renumbered as O.S.No.354 of 2021) on the
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file of Sub Court, Periyakulam against Chinnammal, Ochammal, Chinnasamy,
Swaminathan, Chinnamayan, Saraswathi and the same was allowed vide
Judgment and Decree dated 24.04.1992 granting 1/7th share to the plaintiff
Chinnathai. The defendant Swaminathan had filed appeal suit in A.S.No.57 of
1993 on the file of Principal District Court, Madurai. The said Chinnathai had
filed cross objections in the appeal suit. The Appeal Suit was dismissed, cross
appeal was allowed modifying the Trial Court judgement to an extent that the said
Chinnathai is entitled to 1/6th share. Aggrieved over the defendants had filed
S.A.No.1773 of 1996 and the same was dismissed as abated. Thereafter I.A.01 of
2021 was also filed for passing final decree and the final decree was also passed
against which an appeal is preferred and the same is pending.
4. Hence the revision petitioners V.Eswaran and others had filed E.A.No.1
of 2022 to implead themselves as parties in the E.P.No.114 of 2023 in O.S.No.46
of 2015. The contention of the revision petitioners is that the plaintiff Velmurugan
had including the undivided share of their joint family property belonging to the
revision petitioners herein and the respondents 2 to 6 herein. The suit was decreed
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without hearing their contention, hence they prayed to implead themselves in the
execution petition. The specific contention of the revision petitioners is that the
suit property is still joint property, without dividing the property in metes and
bounds in the partition suit, the mortgagor cannot seek any portion of the
property.
5. But the said impleading petition was dismissed on the ground that the
property mentioned in mortgage suit is different from the property mentioned in
partition suit. The property mentioned in mortgage suit is S.No.514/9, in eastern
side 8-7/8 cents, on western side house constructed with Door No.38/A. But the
property mentioned in partition suit is S.No.514/9 in 0.25 cents, eastern side 8-7/8
cents house constructed with Door No.8,11,19,20. It is seen that the joint family
property in S.No.514/9 in 0.25 cents, on the eastern side 8-7/8 cents with Door
No. 8,11,19,20 which was prevailing as in the year 1985, since the partition suit
was filed on 26.06.1984. Thereafter there was no partition among the family
members. Further the claim of the revision petitioners is that a portion of the
family property was included in the mortgage suit.
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6. In order to ascertain the contention of the revision petitioners that the
property was not divided and still the same is maintained as joint family property,
and a portion was included in the mortgage suit, this Court appointed an Advocate
Commissioner who had submitted an elaborate report wherein it has been stated
that the properties have not been divided. The property is still maintained as joint
property and the revision petitioner is having undivided share. Further stated that
the survey numbers are changed into town survey numbers and door numbers are
also changed. The present Advocate Commissioner had relied on the report filed
by another Advocate Commissioner filed in final decree application and submitted
that there are changes in the survey numbers. And on ground also there are
difference in demarcation of property. In the report filed in final decree
application, it is stated as under:
“The suit properties show in the partition suit as item 21 in S.No.514/6A
and item 24 in S.No.514/9 are one and the same property. Further the
T.S.No.514/64part and 513/3part are changed into T.S.No.31. Then the
T.S.No.514/64part and 513/3part are changed into T.S.No.513/3part,
514/part, 514/6part are changed to T.S.No.43.”
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7. When the survey numbers of the properties are changed, there is
difficulty in the identification of the property. Further both S.No.513 and S.No.
514 are taken together and new T.S.No.31 and 43 are formed. Also, there are
difference in the extent of the property. Further there is no plea in the mortgage
suit that the Door No.38A is a property purchased by the mortgagee Swaminathan
independently through some sale deed. When there is no clarity, then the revision
petitioners and the mortgagor ought to prove before the Court that the mortgaged
property is not belonging to the joint family, it is independent property of
Swaminathan and the identification of the property, whether portion of the
property belonging to the other co-shares are the questions to be ascertained.
Further, without dividing the joint family properties in metes and bounds, the
mortgagor cannot seek any portion of the property. Therefore, the sale itself is
based on erroneous facts. Since it is only undivided share, they cannot demarcate
the property. They should approach the Court wherein the partition suit is
pending.
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8. However, the challenge before this Court is only impleading petition, this
Court is inclined to allow the civil revision petition. The E.A., order is set aside
and the impleading petition is allowed. The case is remitted back to the Additional
District Court and Court is directed to all take the objections of the impleading
petitioners, consider their objections and thereafter, pass an order. The said
proceedings shall be completed within a period of one year from the date of
receipt of a copy of this order.
9. With the above said observations, the civil revision petition is allowed.
No costs. Consequently, connected miscellaneous petition is closed.
22.10.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes
Tmg
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To
1.Additional District Sessions Judge,
Periyakulam.
2.The Section Officer,
Vernacular Records Section,
Madurai Bench of Madras High Court,
Madurai.
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S.SRIMATHY, J.
Tmg
22.10.2024
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