Madras High Court
Sekar vs Thiyagarajan (Died) on 2 June, 2025
C.R.P.No.1769 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.06.2025
CORAM:
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.No.1769 of 2006
Sekar .. Petitioner
Vs.
1. Thiyagarajan (Died)
2. Rajamani (Died)
3.Rani
4.Bhanu
5.T.Ravi
(R2-died, R3 to R5, who are already on record
as LR's of the deceased R2 viz, Rajamani vide
court order dated 18.06.2024 made in
CMP.No.1/2007 in CRP.No.1769/2006)
6.Vasanthi (Died)
7.T.Sakthi Kumar (Died)
8.T.Venkatesan (Died)
(R1 Died, R2 to R8 are brought on record as
LR's of the deceased respondent viz, M. Thiyagarajan
vide court order dated 18.06.2024 made
in CMP.No.1/2007 in CRP.No.1769/2006) .. Respondents
1/13
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C.R.P.No.1769 of 2006
PRAYER: Civil Revision Petition is filed under Section 115 of Code of
Civil Procedure, to set aside the order passed in I.A.No.3 of 2005 in
A.S.No.51 of 2004 on the file of Principal Subordinate Judge,
Vridhachalam dated 14.06.2005.
For Petitioner : Mr.R.Agilesh
For Respondent 5 : Mr.S.Kishore Kumar
for Mr.K.Ramesh
For Respondents
1, 2, 6 to 8 : Died
Steps not taken
For Respondents 3 &4 : left
ORDER
This civil revision petition arises against the order passed in
I.A.No.3 of 2005 in A.S.No.51 of 2004 dated 14.06.2005 on the file of
Principal Subordinate Judge at Vridhachalam.
2. The civil revision petitioner is the sole respondent in the appeal.
3. A.S.No.51 of 2004 arose out of the judgment and decree in
O.S.No.534 of 1997 dated 16.10.2003 on the file of District Munsif cum
Judicial Magistrate at Thittagudi.
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4. The facts necessary for disposal are as follows:-
i) The “B”schedule mentioned property belonged to Murugesa
Pathar. He died intestate, in and around 1977. He left behind his legal
heirs : his wife, Sellammal (6th defendant), and his sons, Thiyagarajan
and Ponnambalam. The “B” schedule mentioned property is admittedly a
dwelling house. “A” schedule mentioned property is a part of the “B”
schedule mentioned property- the land appurtenant to the “B” schedule.
ii) Ponnambalam, soon followed his father and met his maker 17
years earlier to the presentation of the plaint. He left behind his legal
heirs: his wife, Kanagam, and one son namely Ramalingam, and
daughters, Chandra and Amutha as his legal representatives.
Ramalingam, his wife Lakshmi/ 3rd defendant, and his sisters,
(defendants 4 and 5) were in possession and enjoyment of the “A”
schedule mentioned property as owners thereof. The plaintiff/civil
revision petitioner herein purchased “A” schedule mentioned property
from Ramalingam, Kanagam, Chandra, and Amutha by way of registered
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sale deed dated 16.05.1984. He paid valuable consideration of
Rs.17,300/- for the purchase of the property.
iii) Earlier, the civil revision petitioner/plaintiff presented
O.S.No.1037 of 1984 on the file of learned District Munsif,
Vridhachalam against the predecessor in title of the respondents herein,
namely, Thiyagarajan, for declaration of his title and for consequential
relief of injunction.
iv) The plaintiff pleads that the said Thiyagarajan was taking
advantage of the fact that no interim order had been granted in the suit,
forcibly dispossessed the plaintiff from the “A” schedule mentioned
property. Hence, the plaintiff withdrew O.S.No.1037 of 1984 with liberty
to file a fresh suit on the same cause of action. The application in
I.A.No.2842 of 1990 came to be allowed on 08.10.1990. Hence, the
present suit for the following reliefs:-
i) For declaration of plaintiff's title to the suit “A” schedule
mentioned property;
ii) For the consequential relief of recovery of possession;
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iii) With future mesne profits to be determined under Order 20
Rule 12 of Code of Civil Procedure, later or alternatively;
iv) For partition and separate possession of plaintiff's ½ share in
the “B” schedule mentioned property;
v) With future income to be determined under Order 20 rule 18 of
Code of Civil Procedure.
5.The sole contesting defendant Mr.Thiyagarajan filed a written
statement denying the alleged oral partition of the “B” schedule
mentioned property. He admitted that “B” schedule mentioned property
belonged to Murugesa Pathar. After the death of Murugesa Pathar, the
property was commonly enjoyed by legal heirs of Murugesa Pathar,
namely, two brothers and the 6th defendant. He further pleaded that the
“B” schedule mentioned property is a self acquired property of Murugesa
Pathar, and the defendant is entitled to 1/3rd share in the property in his
own right, and that on the death of Ramalingam, his share was split
between the 6th defendant and himself.
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6. He accepted that the plaintiff had filed a suit in O.S.No.1037 of
1984 on the file of District Munsif, Vridhachalam, but denied that he had
forcibly trespassed into the “A” schedule mentioned property and evicted
the plaintiff. On these pleadings, he sought for dismissal of the suit.
7. The learned Trial Judge, after detailed examination, decreed the
suit for partition. Aggrieved by the same, the 1st defendant preferred an
appeal before the Sub-Ordinate Court at Vridhachalam. Pending the
appeal, he took out an application in I.A.No.3 of 2005 under Section 4 of
the Partition Act. That application came to be allowed. Aggrieved by the
same, the plaintiff is on revision before me.
8. Pending the revision, the sole respondent Thiyagarajan passed
away, and his legal representatives, namely, his wife and children have
been brought on record as respondents 2 to 8. The respondents 2, 6 to 8
have died. Being the legal representatives of the deceased respondent, the
other surviving respondents represent the interest of the original
respondent and therefore, there is no necessity to bring on record the
legal representatives of the deceased legal representatives.
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9. I heard Mr.R.Agilesh, learned counsel for civil revision
petitioner, and Mr.S.Kishore Kumar for Mr.K.Ramesh, learned counsel
for the 5th respondent.
10. Mr.R.Agilesh, seeks to set aside the order passed by the
Principal Sub-Ordinate Judge, Vridhachalam on two grounds:-
i) That the appeal itself having been dismissed, the learned First
Appellate Judge ought not to have allowed the application under Section
4 of the Partition act.
ii) The application is belated as it was filed at the stage of first
appeal and not when the suit was still pending before the Trial Court. In
order to substantiate his plea, he relied upon the judgment of this Court
in C.Rajvel Vs C.Muthusamy reported in 2007 3 LW 440.
11. Mr.Kishore Kumar, states that the application under Section 4
is maintainable and therefore, no exception can be taken to the order
passed by the learned First Appellate Judge.
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12. I have carefully considered the submissions on both side and I
have gone through the records.
13. At the outset, I should point out that the civil revision petition
has been filed under Section 115 of the Code of Civil Procedure
challenging an order passed under Section 4 of the Partition Act. In terms
of Section 8 of the Partition Act, any order of sale made by the Court
under Sections 2, 3 and 4 of the said legislation is deemed to be a decree
within the meaning of Section 2 of the Code of Civil Procedure. As
against the decree, the remedy for the party is only to prefer an appeal
before this Court, either as a civil miscellaneous second appeal, or as a
regular appeal. If that were to be the situation, the civil revision petition
would not be maintainable. Yet, taking into consideration that the
revision is pending for the past 20 years, I am not inclined to non-suit the
civil revision petitioner on the ground that an appeal is maintainable.
Hence, I heard counsels on the merits of the case.
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14. As already pointed out, it is not in dispute that the property is a
dwelling house. It is also not in dispute that the civil revision petitioner is
a stranger purchaser. A reading of the plaint shows that the stranger
purchaser has filed the suit seeking for partition on the strength of his
purchase from a co-sharer.
15. For the purpose of Section 4 of the Partition Act to apply, there
should be a suit for partition relating to an undivided family, and there
must be a dwelling house belonging to the said family. If any member of
the family, being a share holder, undertakes to buy the share of such
transferee, then the Court is entitled to pass an order of valuation of such
share and direct sale of such share in favour of the share holder.
16. Applying the said section to the facts of the present case, the
plaintiff Sekar has filed a suit for partition. He is a stranger to the family.
He has purchased the property from the legal representatives of the
shareholder, namely Ponnambalam. The 1st defendant, namely
Thiyagarajan has expressed his interest to purchase the share of the
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stranger purchaser. The facts set forth above comply with the
requirements of the Section 4 of the Partition Act. Therefore, I do not
find any error in the order passed by the learned First Appellate Judge.
17. In so far as the plea of Mr.Agilesh, that the application had
been filed at the appellate stage, and not when the suit is still pending in
the trial court is concerned, a reading of Section 4 of the Partition Act
shows that no such limitation has been placed on a shareholder of the
property to file an application only when the suit is pending at the trial
stage, and not at the subsequent stages of the suit. An appeal is the
continuation of the suit. When there is no bar under the statute, I am not
inclined to read into the legislation, a non existing bar. I do not have the
powers to judicially amend the Act and therefore, the plea of Mr.Agilesh,
stands rejected.
18. With respect to judgment that has been cited by Mr.Agilesh, a
reading of that judgment shows that a revision had been preferred
seeking for a remedy under Section 22 of the Hindu Succession Act. The
nature of the property involved in that revision was not a dwelling house,
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but a vacant agricultural land. When the property is an agricultural land
and not a dwelling house, obviously the judgment would not be
applicable to the facts of the present case. As pointed out by the Supreme
Court in Ghantesher Ghosh Vs Madan Mohan Ghosh and Others
reported in (1996) 11 SCC 446, Section 4 of the Partition Act is a
benevolent provision enabling a sharer to purchase the share in order to
retain the family property. While interpreting a benevolent provision, it
must be interpreted in favour of the person, for whose benefit the said
provision has been enacted. In this case, the beneficiary of Section 4
would be the 1st defendant/1st respondent to this revision.
19. In the light of the above reasons, I do not find anything to
interfere with the order passed by the Principal Sub-Ordinate Judge,
Vridhachalam.
20. The Trial Court shall ensure that the Advocate Commissioner
values the property forthwith and directions for deposit of the amounts so
valued, are made within a reasonable time.
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21. Accordingly, the Civil Revision Petition stands dismissed with
cost of Rs.10,000/-.(Rupees Ten Thousand Only).
02.06.2025
Index:Yes/No
Speaking Order :Yes/No
Neutral Citation:Yes/No
nr
To
The Principal Subordinate Court, Vridhachalam
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V.LAKSHMINARAYANAN,J.
nr
02.06.2025
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