BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11/10/2011 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Appeal Suit(MD)No.181 of 2011 and M.P.(MD) No.1 of 2011 1.A.Mariya Thangam 2.R.Regina Mary .. Appellants/Plaintiffs Vs. 1.Annammal 2.A.Gracy 3.A.Selva Ruby 4.A.John Selvaraj 5.J.Arnold 6.J.Reynold (Minor) 7.J.Jeyrold (Minor) 8.K.M.S.A.Ranjitham 9.Sevanth .. Respondents/Defendants 1 to 9 (Respondents/Defendants 1 to 7 and 9 are Exparte in the suit. So they are given up) Prayer The Appeal Suit has been filed under Section 96 of the Civil Procedure Code, against the judgment and decree dated 21.04.2011 made in O.S.No.38 of 2010 on the file of the Additional District Judge, Fast Track Court, Dindigul, challenging only the dismissal of the relief of declaration of nullity of sale deed document No.5316 of 2008 dated 10.10.2008 executed by the 4th Defendant in favour of the 8th Defendant in the suit alone. !For Appellants ... Ms.S.Vijayashanthi ^For 8th Respondent ... Mr.A.Hariharan For Respondents 1 to 7 and 9 ... Given up :JUDGMENT
The gist and kernel, the pith and marrow of the averments made in the
plaint filed by the appellants herein would run thus:
The suit properties comprised of 10 items, originally belonged to one
S.A.Arockiam. The plaintiffs are the children of the said Arockiam. The 1st
defendant is the daughter-in-law, the defendants 2 to 4 are the paternal grand-
children, the defendants 5 to 7 are the great-grand-children, of the said
Arockiam. No partition took place among them in respect of the suit properties.
The fourth defendant for himself and on behalf of the defendants 5 to 7, out of
their undivided share, sold an extent of 7 cents of land in item No.1 in favour
the 8th defendant and another 9 cents of land in item No.1 in favour of the 9th
defendant.
2. The plaintiffs sought for the following reliefs:
“(a) preliminary decree for partition of their 3/4th share in the suit
properties and for separate possession.
(b) final decree for separate possession, if the defendants fail to give
separate possession of their 3/4th shares in the suit properties, after
appointing an advocate commissioner and getting report from him.
(c) permanent injunction restraining the 4th defendant from alienating or
encumbering items 2 to 10 of the suit properties till the plaintiffs are given
with the separate possession of their 3/4th share.
(d) declaration that the registered sale deed No.5316 of 2008 dated
10.10.2008 executed by the 4th defendant representing the defendants 5 to 7 in
favour of the 8th defendant in respect of the 7 cents of land in the 1st item
property as null and void in respect of the 3/4th share of the plaintiffs.
(e) declaration that the registered sale deed No.1108 of 2010 dated
19.02.2010 executed by the 4th defendant representing the defendants 5 to 7 in
favour of the 9th defendant in respect of 9 cents of land in the 1st item
property as null and void in respect of the 3/4th share of the plaintiffs and
(f) awarding costs of the suit to the plaintiffs.”
3. The 8th defendant contested the suit whereas the other defendants
remained ex-parte. During the trial on the side of the plaintiffs, they examined
themselves as P.Ws.1 and 2 and marked Exs.P.1 to 10. On the side of the 8th
defendant, he examined himself as D.W.1 and marked Ex.D.1.
4. Ultimately the suit was partly decreed as under:
“(i) The suit is decreed partly.
(ii) Preliminary decree is granted directing the defendants 1 to 7 to
partition the suit properties and to put the plaintiffs on separate possession
of their 3/4 shares.
(iii) If the defendants 1 to 7 fail to do so, the plaintiffs are permitted
to file final decree application for getting appointed an advocate commissioner
to partition the plaintiffs 3/4 share and to put them in separate possession.
(iv) permanent injunction is granted against the 4th defendant restraining
him from alienating or encumbering the suit items 2 to 10 till the plaintiffs
are put in separate possession of their 3/4th shares.
(v) It is declared that Ex.A.10 executed by 4th defendant in favour of the
9th defendant in respect of the 1st item property, is null and void regarding
the 3/4th share of the plaintiffs in the suit properties.
(vi) the claim of the plaintiffs to declare Ex.A.9 executed by the 4th
defendant representing himself and the defendants 5 to 7 in favour of the 8th
defendant in respect of the 1st item property as null and void in respect of the
3/4 share of the plaintiffs, is dismissed.
(vii) the respective parties shall bear their own cots.
(viii) Plaintiffs’ side suit expenses is Rs.3076.50.
(ix) 8th respondent’s side suit expenses is Rs.5,030/-.”
5. Being aggrieved by and dissatisfied with a part of the judgment and
decree of the trial Court, the plaintiffs preferred this appeal suit mainly on
the ground that the trial court was not justified in giving a finding in the
judgment that the 8th defendant is entitled to the said 7 cents of land by metes
and bounds, which he purchased as per Ex.A.9 from the 4th defendant and his
minor children, namely defendants 5 to 7.
6. When the matter came up for hearing the injunction petition, by consent
the main appeal itself has been taken up for final disposal as it involves only
a short point for consideration as under:
Whether the trial Court was justified in rendering the finding to the
effect that the 8th defendant, the third party purchaser of an extent of 7 cents
of land in the undivided 1st item of the suit properties, is entitled to be
allotted with the same during partition?
7. The long and the short of the arguments of the learned counsel for the
appellants would run thus:
The trial Court was not justified in rendering a finding based on some
alleged admissions made by P.W.1 during the course of cross-examination to the
effect that the third party purchaser, namely the 8th defendant, is entitled to
be allotted with the said 7 cents of land by metes and bounds as contemplated in
Ex.A.9, the sale deed which was executed by the 4th defendant for himself and on
behalf of his minor children, namely defendants 5 to 7; whatever be the right of
the eighth defendant, which is allegedly derived from defendants 4 to 7 should
be worked out on equity basis only at the final decree proceedings.
8. Per contra, the learned counsel for the eighth defendant in a bid to
mince meat and torpedo the contentions of the learned counsel for the appellants
has advanced his arguments which could tersely and precisely be set out thus:
In the preliminary decree, the trial Court did not say anything to the
effect that the 8th defendant is entitled to the said 7 cents of land by metes
and bounds as contemplated in the sale deed Ex.A.9; however, in the judgment,
the trial Court appropriately and appositely, correctly and convincingly placed
reliance upon the admission made by P.W.1 (first plaintiff) during the course of
cross-examination and held that the 8th defendant being an adjacent owner of the
suit property No.1, who also carved out his lands into plots utilising the
portion of 7 cents purchased by him for the ingress and egress to his plots, is
entitled to retain the same.
9. Trite, the proposition of law is that the trial Court at the time of
passing the preliminary decree would not be justified in working out the equity
in favour of the 8th defendant, a third party purchaser, who purchased the
undivided share in a joint property. Normally that exercise should be undertaken
only at the time of the final decree proceedings. The matter would be different,
if both the contesting parties filed any joint memo in respect of a portion of
the suit property is concerned. Here, ex-facie and prima-facie, it is clear that
the trial Court culled out certain portions from the cross-examination of P.W.1
to hold that P.W.1 had no objection for the said 7 cents of land as contemplated
in Ex.A.9 for having allotted in favour of the 8th defendant.
10. In my considered view, the trial Court at the time of passing the
preliminary decree was not justified in making such final observation in the
judgment. However, I would like to readily countenance the submission of the
learned counsel for the 8th respondent/8th defendant that the trial Court was
justified in not declaring the sale deed under Ex.A.9 as null and void, even
though the learned counsel for the plaintiffs would submit that the said deed
was null and void. Simply because an un-divided share was sold by one of the co-
sharers to a third party, the sale deed itself need not be declared as null and
void. Whatever share that could be actually allotted to the co-sharer, who
alienated his share, would be allotted to the purchaser and as such the metes
and bounds of the share of the said co-sharer would be worked out at the time of
final decree proceedings and the purchaser would ultimately step into the shoes
of his vendor. When such is the legal position, I am of the considered view that
the trial Court was not justified in finally giving the verdict to the effect
that the 8th defendant was to be allotted by metes and bounds the said 7 cents
as contemplated in Ex.A.9.
11. To the risk of repetition and pleonasm, but without being tautologous,
I would like to reiterate that the matter would be different if there is any
partial compromise regarding the area purchased by the 8th defendant from
defendants 4 to 7; on the contrary the trial court culling out certain portion
in the cross-examination of P.W.1, placed reliance on the same and rendered its
verdict and such an exercise is not contemplated while passing the preliminary
decree. Therefore, I am of the considered view that the matter requires
interference to the limited extent and the legal position should be clarified so
that there will not be any further legal complication in working out the
remedies by the parties during the final decree proceedings. The judgment of the
trial Court at para No.16 giving the verdict in favour of the 8th defendant that
the 8th defendant should be allotted with the said 7 cents of land as
contemplated in Ex.A.9 by metes and bounds should be expunged and it is open for
the 8th defendant to, workout his equity at the time of final decree proceedings
based on the evidence available on record and the evidence to be adduced by him.
With this modification, no further interference with the judgment and decree of
the trial Court is warranted.
12. Accordingly, the Appeal Suit is partly allowed. Consequently,
connected M.P.(MD) No.1 of 2011 is closed. No costs.
13. The learned counsel for the 8th respondent has made an extempore
submission that pending final decree proceedings, the parties should be directed
to maintain status-quo and they should not alienate or encumber the suit
properties.
14. There could be no second thought over it and the 8th defendant is
expected to maintain status-quo in respect of the property as in Ex.A.9 without
in any way modifying the physical features or encumbering it and similarly the
plaintiffs are also expected to maintain status-quo.
sj
To
1.The Additional District Judge,
Fast Track Court,
Dindigul.