Madras High Court
Mrs.M.Kasthuri vs Mr.R.Venkatesan on 2 April, 2025
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
A.S.No.707 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.04.2025
CORAM
THE HON'BLE MR.JUSTICE N.SATHISH KUMAR
A.S.No.707 of 2024
Rajeswari (deceased)
(Amended as per order in I.A.No.5368 of 2015
dated 30.04.2015)
Rani (deceased)
(Amended as per order in I.A.No.1 of 2022
dated 22.08.2022)
1. Mrs.M.Kasthuri
2. Mrs.M.Shanthi
3. Mrs.Lakshmi
4. Miss.Banumathi
5. Mr.R.Srinivasan ... Appellants/Plaintiffs
-vs-
Mr.R.Venkatesan ... Respondent/Defendant
Prayer: Appeal Suit is filed under Section 96 r/w Order XLI Rule 1 of CPC
to allow the appeal by setting aside the judgment and decree made in
I.A.No.15784 of 2018 in O.S.No.1249 of 2011 dated 19.02.2024 passed by
the learned VII Additional City Civil Judge, Chennai and to decree the suit
as prayed for.
For Appellants : M/s.K.Jenitha
For Respondent : No Appearance
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A.S.No.707 of 2024
JUDGMENT
Challenging the decree and judgment of the Trial Court
dismissing the application filed under Order XX Rule 18 of CPC to pass a
final decree in accordance with the preliminary decree dated 19.03.2018, the
present appeal has been filed.
2. The private notice served on the respondent has been
returned with an endorsement 'unclaimed'. It is seen that even during
passing of preliminary decree, the respondent remained exparte and also in
the final decree proceedings, the respondent has not chosen to appear before
the Trial Court.
3. The plaintiffs have taken out an application for passing a
final decree in terms of the preliminary decree dated 19.03.2018 and the
said application was dismissed by the Trial Court on the ground that there is
some discrepancy in the schedule of property. In the judgment, the Trial
Court held that in the schedule of property annexed with the plaint, the
extent of the schedule of property has been mentioned as 3696 sq.ft.,
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whereas in the Engineer's report, it has been mentioned that the extent of the
land available as per site is 3600 sq.ft. only. Further, the Trial Court
dismissed the application, observing that there is no application filed to
amend the correct description of property with exact measurement for
dividing the schedule of property into shares.
4. Heard the learned counsel for the appellants and perused the
material documents available on record.
5. The very approach of the Trial Court in non suiting the final
decree proceedings in a casual manner is highly deprecated. The Engineer's
report available on record clearly indicates that as per the plan, only 3540
sq.ft. is available and as per site, 3600 sq.ft. in ground is available and in the
document, it is mentioned as to the availability of extent of land as 3696
sq.ft.
6. Be that as it may, the issue as to whether division is possible
or not to allot shares has not been gone into by the Trial Court. When the
property is not capable of division for allotment of shares, the only mode is
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to auction the property and distribute the proceeds equally. The Trial Court
ought to have adopted the procedures contemplated under Section 2 of the
Partition Act, 1893. The Trial Court has dismissed the final decree
proceedings mainly on the ground that no document has been filed to prove
that there is no Class-I legal heir to the 3rd petitioner/plaintiff, who was
reported dead. It is relevant to note that when other legal heirs clearly spelt
out that the 3rd petitioner/plaintiff is not left with any Class-I legal heir, the
Trial Court ought to have proceeded without insisting any further document
in this regard.
7. Further, the Trial Court also non suited the petition for not
amending the petition in respect of allotment of correct shares. The Trial
Court should have granted at least some more time to the appellants to carry
out amendment and proceeded further. Instead of doing so, shutting the
rights of the appellants clearly indicates that the Trial Court in fact
abdicated its responsibility and casually dealt with the matter. In fact, the
preliminary decree was passed as early as 05.03.2013 and almost 11 years
have gone by. The act of the Trial Court in non suiting the parties on
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technical ground will prevent them to realize the decree fully. The casual
approach clearly shows that the Trial Court has not passed the order
judiciously and therefore, the order of the Trial Court is liable to be set
aside.
8. Accordingly, the instant appeal is allowed. The decree and
judgment made in I.A.No.15784 of 2018 in O.S.No.1249 of 2011 dated
19.02.2024 by the VII Additional City Civil Judge, Chennai is hereby set
aside and the matter is remanded to the Trial Court, with a direction to pass
the final decree by following the procedures contemplated under the
Partition Act, 1893. Mere discrepancy in the extent of land will not have
any impact and the division has to be effected on the basis of the available
extent. If the division is not possible, the procedures as stipulated under
Section 2 of the Partition Act, 1893 needs to be followed scrupulously. No
costs.
02.04.2025
Index: Yes / No
Internet: Yes / No
ar
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N.SATHISH KUMAR,J.,
ar
To:
1. The VII Additional City Civil Judge,
Chennai
2. The Section Officer,
V.R.Section,
High Court,
Madras.
02.04.2025
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