IN THE HIGH COURT OOF JUDICATURE AT MADRAS
Dated: 31/12/2004
Coram
The Hon'ble Mr. Justice P. SATHASIVAM
and
The Hon'ble Mr. Justice AR. RAMALINGAM
C.M.A. No. 198 of 1997
1. V. Munusamy (deceased)
2. M. Navaneetham,
3. M. Geetha,
4. M. Latha.
5. A.M. Bhalaji.
(Appellants 2 to 5 brought on record
as Legal Representatives of the
deceased sole appellant as per order
of Court dated 1-12-2004). ..Appellant/Respondent/Petitioner/ Defendant.
-Vs-
M. Suguna. .. Respondent/Appellant/Respondent/ Plaintiff.
Civil Misc., Appeal is filed under Order 43, Rule 10 of Code of Civil
Procedure against judgment and decree in A.S.No. 393/89 dated 30-4-1992 on
the file of II Additional Judge, City Civil Court at Madras.
!For appellants:- Mr. T.R. Mani, Senior counsel
for Mr. S. Senthilnathan.
^For Respondent:- Mr. G. Ravishankar.
:JUDGEMENT
(Judgement of the Court was delivered by P. Sathasivam,J.)
The above Civil Miscellaneous Appeal has been directed against the order of
the II Additional Judge, City Civil Court, Madras dated 30-4-1992 made in
A.S.No.393/89 wherein the learned Judge remanded the suit to the trial Court
(III Assistant Judge, City Civil Court, Madras) for fresh disposal in
conformity with Section 4 (1) of the Partition Act. First defendant in
I.A.No.9105/81 on the file of 3 rd Assistant Judge, City Civil Court, Madras
is the appellant in the above appeal. The respondent herein/plaintiff filed
the said suit for partition. The suit property is a building bearing Door No.
70/1, New No.13 in Sundaraja Perumal Koil street, Peravellore, Madras-82,
originally belonged to one Athiammal. She executed a settlement deed on
19-2-1951 in respect of the said property in favour of defendants 1 and 2 who
are brothers. They were residing in a portion of the suit building and had
let out the remaining portions to defendants 3 to 9. The first defendant has
not amenable to give due share to the 2 nd defendant in the suit property;
accordingly, the 2nd defendant went out of the same and to live in his wife’s
house. The second defendant offered to sell his half share in the suit
property to the plaintiff, who agreed to purchase the same. Accordingly, the
share of the 2 nd defendant was conveyed by him on 22-5-81 in favour of the
plaintiff for a consideration of Rs.20,000/-. After purchase, the plaintiff
issued lawyer’s notice to the first defendant calling upon him to effect
partition of the suit property in to two half shares. Since the same was not
acceded to, the plaintiff filed the said suit.
2. The suit was resisted by the first defendant by filing written statement.
Ultimately, by judgement and decree dated 2 5-3-83, a preliminary decree was
passed for partition and separate possession of half share in the property in
favour of the plaintiff.
3. After the preliminary decree, the first defendant filed I.A.No.7745/87
under Section 4 (1) of the Partition Act before the 6th Assistant Judge, City
Civil Court, Madras to ascertain the value of the share of the plaintiff in
respect of the dwelling house of the petitioner therein/1st dwefendant
situated at No.13, Sundararaja Perumal Koil street which is the subject matter
of the partition suit in O.S.No. 9105 of 81. The said application was
contested by the respondent therein/plaintiff by filing counter statement.
Learned III Assistant Judge, City Civil Court, Madras, after considering the
rival contentions, ultimately allowed the application filed under Section 4
(1) of the Partition Act. Questioning the same, the respondent
therein/plaintiff filed an appeal in A.S.No. 393/89 before the II Additional
Judge, City Civil Court, Madras. The appellate Judge allowed the appeal, set
aside the decree and judgement of the trial Court and remitted the matter back
to the trial Court for fresh disposal according to law and in conformity with
Section 4 (1) of the Partition Act. Questioning the said order of remand, the
first defendant/ appellant herein has preferred the present appeal. Pending
disposal of the appeal, the sole appellant died and in his place his legal
heirs, namely, appellants 2 to 5 were brought on record as per the order dated
1-12-2004 made in C.M.P.No. 13259 of 2004.
4. Heard Mr. T.R. Mani, learned senior counsel for the appellants and Mr.
G. Ravishankar, learned counsel for the respondent.
5. The only point for consideration in this appeal is, whether the appellate
Court is justified in remanding the matter to the trial Court for fresh
disposal?
6. There is no dispute that the preliminary decree dated 25-3-83, granting
half share in the suit house in favour of the plaintiff and the first
defendant has become final, since no appeal has been filed against the same.
Inasmuch as the plaintiff being a third party who purchased the share of the
second defendant who is noneelse than the brother of the first defendant, the
other sharer, namely, first defendant filed a petition under Section 4 (1) of
the Partition Act, 1893 (in short “the Act”). The said provision reads as
under:-
“Section 4. Partition suit by transferee of share in dwelling-house.- (1)
Where a share of a dwelling-house belonging to an undivided family has been
transferred to a person who is not a member of such family and such transferee
sues for partition, the court shall, if any member of the family being a
shareholder shall undertake to buy the share of such transferee, make a
valuation of such share in such manner as it thinks fit and direct the sale of
such share to such shareholder, and may give all necessary and proper
directions in that behalf.
Section 4 (1) of the Partition Act involves the following aspects:
i) The property shall be a dwelling house;
ii) It shall remain as an undivided family property;
iii) The member of such undivided family should
have sold his share of the dwelling house to a
transferee such a transferee should be a third
party;
v) There shall be an undertaking by the other
shareholder to undertake to buy the share
purchased by such a transferee in terms of
Section 4(1) of the Partition Act;
vi) Thereupon the Court shall direct the sale of
such share by the transferee to such a share-
holder.
7. Based on the averment in the affidavit filed in support of I.A.No.7745/87,
filed under Section 4 (1) of the Act, the trial Court, after satisfying
itself, gave a finding that the petitioner therein/appellant herein is
entitled to purchase the suit property on such finding satisfies one of the
conditions prescribed under Section 4 (1) of the Act. No doubt, the trial
Court has not arrived the value of the share purchased by the transferee i.e.,
plaintiff. However, as rightly pointed out by the learned senior counsel for
the appellant, on this ground the lower appellate court set aside the order of
the trial Court, including the finding of the entitlement of the appellant to
purchase undivided share alienated by the family member to stranger alienee.
As rightly argued, the principles underlying the exercise of the power of
remand by the appellate court has not been properly applied or exercised by
the lower appellate court. Courts have held that only in exceptional cases
where the judgement of the trial court is wholly un-intelligible or
incomprehensible the appellate court can remand the matter for fresh disposal.
Order 41, Rule 23 give ample power to the lower appellate court to decide all
issues, including appointment of a commission for local inspection, secure
finding from the trial Court. Even if certain mistakes crept in in the order
of the trial court, the same can be rectified by the appellate court itself,
unless there are very compelling circumstances to make an order of remand. An
order of remand should not be taken to be matter of course and the power of
remand should be sparingly exercised. There should be always endeavour to
dispose of the case by the appellate court itself, when the commissions and
omissions made by the first Court could be corrected by the appellate Court.
In the case on hand, even if there is omission by the trial Court regarding
determination of the value of the share purchased by the plaintiff, in the
light of the above discussion coupled with the mandate provided under Order 4
1, Rule 23 and 27, the appellate court itself can ascertain the value either
by appointment of a Commissioner or by getting a report from the trial Court.
As said earlier, Section 4 (1) of the Act gives option to any member of the
family who is a co-sharer in respect of a dwelling house, a portion whereof
has been transferred to a person who is not a member of such family, to
purchase the share of such transferee if a suit for partition is filed by that
transferee. On such option being exercised, the valuation of such share has
to be determined. The crucial date for the purpose of fixing the valuation of
the share of such transferee is the date when option to purchase in accordance
with Section 4 of the Act is exercised by the defendant-cosharer.
8. In the light of our discussion, we are of the view that the lower
Appellate Court committed an error in remanding the matter to the trial Court;
accordingly we set aside the judgement dated 30-4-1992 in A.S.No. 393 of 1989
and restore the appeal its file. The II Additional Judge, City Civil Court,
Madras is directed to dispose of the appeal on merits as indicated above,
after affording opportunity to both parties. Since the I.A. under Section 4
(1) of the Act is pending from 1987, the lower Appellate Court is directed to
dispose of the matter within a period of four months from the date of receipt
of a copy of this order. Civil Miscellaneous Appeal is allowed. No costs.
R.B.
Index:- Yes
Internet:- Yes
To:-
1. The II Addl. Judge, City Civil Court, Madras.
2. The III Assistant Judge, City Civil Court, Madras.