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2022 DIGILAW 1071 (MAD)

G. Ragavendran v. U. Indra

2022-05-06

RMT.TEEKAA RAMAN

body2022
JUDGMENT (Prayer: Civil Miscellaneous Appeal filed under Order 43 Rule 1(u) of the Civil Procedure Code against the judgment and decreee of the Lower Appellate Court made in A.S.No.100 of 2010, dated 23.08.2022, on the file of the Principal District Judge, Thiruchirappalli remanding the suit in O.S.No.276 of 2005, on the file of the II Additional Subordinate Judge, Tiruchirappalli, for fresh disposal.) 1. This Civil Miscellaneous Appeal is directed against the judgment and decreee of the Lower Appellate Court made in A.S.No.100 of 2010, dated 23.08.2022, on the file of the Principal District Judge, Thiruchirappalli remanding the suit in O.S.No.276 of 2005, on the file of the II Additional Subordinate Judge, Tiruchirappalli, for fresh disposal. 2. The above appeal is filed by the plaintiffs in the suit in O.S.No.276 of 2005.The appeal is against the order of remand passed in A.S.No.100 of 2010 filed by the defendants 2 and 3 in the suit. The suit was filed for partition and separate possession of 2/15th sahare of the plaintiff in the suit property. 3. According to the plaintiffs, the suit property originally belongs to Krishnamoorthy Achar and he executed a settlement deed in favour of G.Upendran. Upendran died on 17.09.1998 leaving behind him, the defendants 2 and 3, wife and daughter and his mother Rukmani Ammal. Rukmani Ammal died on 23.07.2000 leaving behing the plaintiffs, her grand-daughter Sangeetha, third defendant in the suit and defendant 4 and 5 grand-sons of the predeceased son of Rukmani Ammal. Thus the plaintiffs have 1/15th share , D1 has got 1/15th share and third defendant has got 1/15th share, D4 and D5 jointly have 1/15th share. Since the defendant refused to come for an amicable settlement for partition, the suit came to be filed. 4. The suit property is a land of 88 feet north-south by 10 ½ feet east-west in Door No.21, South Chithra Stteet in T.S.No.498 in Vellithurumutham Village, Srirangam Taluk, Tiruchirappalli District. 5. So far as the share of the parties and relationship are concerned, there is no dispute between the parties. Insofar as the second respondent is concerned, though there are no objections for passing a decree for partition, they sought for Right of Pre-emption in respect of the suit property and offered to pay the proportionate market value of the property. 6. Insofar as the second respondent is concerned, though there are no objections for passing a decree for partition, they sought for Right of Pre-emption in respect of the suit property and offered to pay the proportionate market value of the property. 6. After framing of issues, Ex.A1 to A3 were marked on the appellant side and second defendant entered the witness box as D.W.1 and one Selvaraj was examined as D.W.2. Ex.A1 to Ex.A6 were marked on the side of the respondent. The trial Court by decree dated 29.06.2009, decreed the suit as prayed for. 7. Aggrieved against the judgment of the trial Court, the defendants 2 and 3 have preferred an appeal in A.S.No.100 of 2010 before the District Court, Trichy. The appellate Court by judgment and decree, dated 23.08.2011, set aside the decree for partition granted by the trial Court and also remanded the matter to the lower Court, directing the lower Court to apply the law of Preemption in favour of the defendants 2 and 3, as they are the highest share holders and they have put up the construction by spending Rs.10 lakhs in the suit property. By order, dated 23.08.2011, the appeal preferred by the defendants 2 and 3 were allowed and the matter was remitted back to the trial Court for ascertainment of the value of the property on the basis of the share as decided by the trial Court. Aggrieved against the order of remand, the first plaintiff has preferred the above said Civil Miscellaneous Appeal. 8. Heard the learned counsel appearing on either side and perused the materials placed before this Court. 9. The parties to the lis claim respective shares as mentioned below: STATEMENT OF SHARES FILED BY THE COUNSEL FOR APPELLANT 1st Plaintiff : 3/30 share 1st Defendant : 3/30 share Defendants 2 & 3 : 22/30 share Defendants 4 & 5 : 2/30 10. The property was settled by one Krishnamoorthy in favour of Upendran, who is the husband of the first appellant and father of the second appellant. After settlement, the said Upendran was living with the wife, daughter and mother in the suit property and he died on 17.09.1998.Since he has not created any document in respect of the property, his wife, daughter and mother are entitled to 1/3rd share each. After settlement, the said Upendran was living with the wife, daughter and mother in the suit property and he died on 17.09.1998.Since he has not created any document in respect of the property, his wife, daughter and mother are entitled to 1/3rd share each. The mother also died on 23.7.2000 and on the death of the mother, her 1/3 share in the property devolves upon her sons. The plaintiffs, first defendant and one Narasimhan are her other sons. Narasimhan also died and his sons were impleaded as defendants 4 and 5. Pending suit, the second plaintiff also died as a bachelor and his share devolves upon his surviving brothers viz., the first plaintiff and the first defendant. The above facts are admitted by both the plaintiffs and the defendants. 11. The relationship of the parties are admitted. The division of the share is admitted by both the parties and the defendants 2 and 3 came in appeal and they have admitted the shares allotted to the parties, but the case of the appellant is that the appellants are the major share holders and the property is very narrow and it is not feasible for the sharers to divide the property and to live in the property and therefore, as the major share holders, the appellants are having right of preemption and hence the property is to be allotted to the appellants and the appellants are ready and willing to give the market value of the shares of the plaintiffs and other defendants, as fixed by the Court. 12. The learned counsel for the respondent would contend that the second respondent D.W.1 has given evidence that the property cannot be conveniently and reasonably divided. According to the appellants, the property cannot be divided and one sharer can take the property by giving the moieties to other sharers and since the appellants are major share holders, they have the right of preemption the appellants can be permitted to take the property after giving the moieties to other sharers.13. According to the appellants, the property cannot be divided and one sharer can take the property by giving the moieties to other sharers and since the appellants are major share holders, they have the right of preemption the appellants can be permitted to take the property after giving the moieties to other sharers.13. On a perusal of the trial Court order and the evidence adduced before the Court, I find that the appellants have not filed petition to sell the property and that the appellant can claim right of preemption only when the purchaser of a share in the joint family property files the suit for partition and a co-sharer cannot exercise the right under Section 4 of the Act. 14. It is stated that Section 2 of the Partition Act applies at any stage untill passing of final decree for partition and that filing of application under Section 3 of the Act is not always mandatory and if the Court feels that the property cannot be divided reasonably and conveniently, it is the discretion of the Court to permit the party who offers to purchase the property by giving moieties to other sharers. In this case, the appellants offered to purchase the property by giving moieties to other sharers. 15. Considering the fact that the size of the property and by sizewise measurement, the suit property cannot be divided conveniently, without filing any separate application, sharers claim to sell the property and to claim right to purchase the property. For the said purpose, the lower appellate Court has allowed the appeal and remanded the matter back to the trial Court. Against the said order of retrial, the plaintiff has preferred the above appeal. 16. Whether one of the party to the lis can make a claim to purchase the property without filing any application to sell the property in their favour is no longer res-integra that at any stage till passing of the final decree for partition, Section 2 of the Partition Act is applicable and an application in writing under Section 3 of the Partition Act is always mandatory and if the Court feels that the property cannot be divided, it can be sold to the major share holder. The measurement of the property is narrow and admittedly, the same cannot be divided conveniently and therefore, in my considered view, remitting the matter back to the trial Court is not required. The lower appellate Court can consider the same and determine the amount by appointing an Advocate Commissioner to determine the value of the property on the date of filing of the suit and determine the amount to be paid by the major share holder as mentioned therein. 17. In view of the above, the C.M.A is partly allowed to the limited extent as indicated above by setting aside the order of remitting back for deciding the claim of the defendants 2 and 3 by ascertaining the value of the property is set aside and the lower appellate Court is directed to do the same exercise by appointing an Advocate Commissioner and accordingly A.S.No.100 of 2010 is remitted back to the Principal District Judge, Trichirapplli. The above said exercise shall be completed within a period of 12 weeks from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petitions are closed.