IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 07.08.2008 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.96 of 2003 and C.M.P.Nos.13312, 13313 and 14552 of 2004 K.T.Dayalan ... Appellant Vs. 1. K.T.Kirubanandam 2. Vasanthi Durairajan 3. Dhanammal 4. K.T.Vadivarasan 5. K.T.Ravi ... Respondents Appeal against the judgment and decree of the learned Subordinate Judge, Gudiyatham in O.S.No.114 of 1999 dated 30.01.2002. For appellant :: Mr.A.Chidambaram For respondents :: Mr.S.Sadashram for R1 Mr.N.S.Mukundan for M/s.A.Prabhadevi for R2 Mr.P.Arivudainambi for RR4& 5 JUDGMENT This appeal is focussed as against the judgment and decree dated 30.01.2002 passed by the learned Subordinate Judge, Gudiyatham in dismissing the suit in O.S.No.114 of 1999 relating to items 2 to 4 and decreed the suit in respect of item No.1 ordering partition. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 2. In view of the fact that this appeal is focussed only as against the first item of the suit property and not relating to the dismissal of the suit relating to items 2 to 4, the other details relating to items 2 to 4 in the plaint as well as in the written statement are not set out here under. https://hcservices.ecourts.gov.in/hcservices/ 3. Niggard and bereft of details, the case of the plaintiffs, as stood exposited from the plaint, could be portrayed thus:- (a) one Deceased Tharani Mudaliar had four sons, namely, the plaintiffs 1 to 3 and D1 and one daughter, namely D2. His wife is D3. The suit properties described in the schedule of the plaint and other properties belonged to the joint family of the said K.B.Tharani Mudaliar, except the properties described in the schedule of the plaint, relating to other properties, there arose a Registered Partition Deed dated 30.6.1976 among the deceased Tharani Mudaliar and plaintiffs 1 to 3, the first defendant and 2rd defendant and the property by name Murugan Talkies-the first item of the suit property, was kept in common among the plaintiffs, D1 and late K.B.Tharani Mudaliar. (b) The said Tharani Mudaliar, during his life time orally sold his undivided 1/5th share in the first item in favour of the 3rd plaintiff on 30.11.1988. The remaining items 2 to 4 as found described in the suit schedule were kept in common among the Tharani Mudaliar and his sons and daughter. Consequent upon his death, Tharani Mudaliar's 1/6th share in those item Nos. 2 to 4 devolved upon equally among the plaintiff and D1 to D3, so to say his sons, daughter and wife. The said Murugan Talkies could not be run for a few months anterior to the filing of the suit, due to the obstruction caused by D1. Hence, the suit for partition and for mesne profits. 4. Per contra, denying and refuting, challenging and impugning the allegations/averments in the plaint, D1 filed the written statement, the gist and kernel of it would run thus: The oral sale as alleged to have been effected by Tharani Mudaliar relating to his 1/5 th share in the first item of the suit property to the third plaintiff is nothing but an utter falsehood. The defendants 2 and 3 did not claim any share in the first item. As such the first item of the suit property should be divided into four shares only and the plaintiffs 1 to 3 and D1 should be allotted 1/4th share each. The said theatre described in the first item of the suit property cannot be divided into five shares by metes and bounds and there are provisions in the Partition Act for conducting public auction. If done so, it would fetch a sale price of Rs.75 lakhs. D1 is for conducting public auction. Accordingly, the defendant No.1 prayed for allotment of shares. 5. The second and third defendants remained ex parte before the trial Court. https://hcservices.ecourts.gov.in/hcservices/ 6. The trial Court framed the relevant issues. During trial, on the side of the plaintiffs, the third plaintiff examined himself as PW1 along with one Balaraman PW2 and Ex.A1 was marked. On the side of the defendants, D1 K.T.Kirubanandam examined himself as DW1 along with one Beemaraj as DW2 and Exs.B1 to B4 were marked. The trial Court ultimately dismissed the suit relating to items 2 to 4 and decreed the suit only in respect of item No.1 ordering partition and allotting ¼ th share each in favour of plaintiffs 1 to 3 and D1. 7. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the third plaintiff/appellant preferred this appeal on various grounds, the pith and marrow of them could be set out thus: The trial Court failed to uphold the oral sale effected by deceased Tharani Mudaliar during his life time relating to his 1/5th share in the first item of the suit property, viz., theatre property in favour of plaintiff No.3. Accordingly, he prayed for the modification of the judgment and decree of the trial Court. 8. The points for consideration are as to:- 1. Whether the appellant/third plaintiff even in this first appeal, which is against the preliminary decree passed by the trial court can invoke the provisions of the Partition Act and seek for auction to be conducted among the co-sharers ? 2. Whether the trial court was justified in not allotting any share in favour of D2, Vasanthi Durairajan? 3. Whether there is any infirmity in the judgment and decree of the trial court? 9. Heard the learned counsel appearing for the parties. Point No.1: 10. At the outset itself, the learned counsel for the appellant/plaintiff No.3 would advance his argument to the effect that even though before the trial Court the plea of oral sale of https://hcservices.ecourts.gov.in/hcservices/ the share of his deceased father in favour of the appellant was put forth nonetheless, he is not pressing that plea now and that the trial Court also has held as against such plea of oral sale. The crucial point for adjudication before this Court is relating to the right of the appellant/plaintiff No.3 seek for conducting auction concerning the theatre viz., the first item of the suit properties, even while this appeal is pending before this Court. 11. In the written statement D1 at para No.13, averred thus: "13. This defendant submits that the theatre cannot be divided into 5 shares by metes and bounds because is is incapable of division into five shares and there cannot be a theatre after it is divided into five shares. Therefore only the provision of Partition Act has to be applied and the theatre should be brought for public auction in which event the sale will be nothing less than Rs.75,00,000/-. This defendant is prepared for a sale under the Partition Act and for an open public auction. The claim by the plaintiffs that they are willing to take 4/5th share in item No.1 and 21/36 share in item No.2 is only an eye wash. They have deliberately undervalued the theatre." 12. Placing reliance on the aforesaid excerpt, the learned counsel for the appellant would contend that D1 is precluded from contending otherwise that the theatre property should not be auctioned among the co-sharers; instead of driving the parties once again to the lower Court and getting their remedies, which would be time consuming, this Court itself could permit the appellant to invoke the relevant provision of the Partition Act so that either of the co-sharers could bid in the auction and accordingly purchase the theatre property, which would be beneficial for all the co-sharers. In support of his contention, he also cited various precedents. 13. Per contra, the learned Advocates appearing for the first plaintiff and D1 in unison would oppose the aforesaid prayer, which emanated from the side of the appellant-plaintiff No.3 and contend that only during final decree proceedings those matters as put forth by the learned counsel for the appellant could be considered and this appeal can be disposed of by dismissing it and consequently confirming the preliminary decree of the trial Court. 14. D2, Vasanthi Durairajan, the daughter of Tharani Mudaliar, who remained exparte before the trial Court but now represented through her counsel would contend that D2 being the daughter of Tharani Mudaliar is entitled to the share of Tharani https://hcservices.ecourts.gov.in/hcservices/ Mudaliar as his Class-I heir under the Hindu Succession Act. It is therefore just and necessary, in this case, to find out as to whether this Court itself could at this stage permit the appellant to move this Court for appointment of an Advocate Commissioner to conduct auction sale among the co-sharers under the Partition Act. 15. At the hearing it transpired that even as on the date of filing the appeal itself, the defendant No.3 Dhanammal died and all the legal heirs of Dhanammal are already on record and as such, that would not in any way change the legal position. I make it clear that, consequent upon the death of Dhanammal, the respective shares of other sharers would get enlarged correspondingly. 16. The learned counsel for the appellant cited the decision of the Hon'ble Apex Court reported in 1991 AIR SCW 217 (Malati Ramchandra Raut and others vs. Mahadevo Vasudeo Joshi and others). An excerpt from it would run thus: "6. The learned Single Judge noticed that there was no dispute between the parties as regards their respective shares in the suit properties. It was also no longer in dispute that the properties were incapable of division by metes and bounds and that they had, therefore, to be sold. The defendants having sought leave of the Court to purchase the shares of the plaintiffs in the properties at a valuation, those shares had to be valued as on the date of their so seeking the leave and not as on any subsequent date. The learned Judge held that once the defendants exercised their right under Section 3(1) of the Act, their rights, as between themselves and the plaintiffs, were crystallised and concluded. He, however, stated that he did not pass any decree in the suit, but only directed the valuation of the properties with reference to the date on which the defendants sought leave of the Court under S.3 in order that, upon conclusion of the proceedings, the shares of the plaintiffs in the properties could be sold to the defendants at the price so determined." (emphasis supplied) A bare perusal of the said judgment would clearly indicate that the concerned co-sharer is at liberty to move the Court for bringing the property for sale among the co-sharers in the event of the Court finding that the property concerned was incapable of division. No doubt, the learned counsel for the appellant/plaintiff No.3 would place reliance on para No.13 of the written statement and contend that already D1 clearly stated that the property was indivisible and that there was nothing more to be decided about indivisibility and hence this Court could straight https://hcservices.ecourts.gov.in/hcservices/ away order for auctioning the first item of the suit property among the co-sharers. There is no dictum in the Hon'ble Apex Court decision to the effect that even while the High court hearing the appeal as against the preliminary decree could invoke the provisions of the Partition Act and direct an Advocate Commissioner to be appointed to conduct auction among the co-sharers relating to an item of suit property is concerned. 17. The learned counsel for the appellant also placed reliance on the decision of the Hon'ble Orissa High Court reported in AIR 1991 Orissa 83 (Fakir Khan v.Kuanr Khan and others). An excerpt from it would run thus. "2. The defendant took the stand in the written statement that the plaintiff had relinquished her share by taking some money and the defendant had constructed his house with the full knowledge of the plaintiff on the disputed land. It was also averred that the plaintiff was never in possession of the disputed property and the Khasmal authorities granted lease in favour of the defendant after due enquiry and consequently the defendant had become the absolute owner of the property. The learned trial Judge on appreciation of the evidence before him, disbelieved the story of relinquishment of share by the plaintiff as well as receipt of money from the defendant. It was found that there being no registered document relating to relinquishment as required under S.17 of the Registration Act, there had been no proof of such relinquishment. It was also observed that the defendant had not right of preemption. On these findings, a preliminary decree was passed declaring the plaintiff's 1/3 rd interest in the suit properties. It was further directed that the portion on which the plaintiff's residential house situated should be allotted to her. The defendant assailed the judgment and decree in appeal which was registered as First Appeal No.16 of 1973 but that was dismissed by the High Court on 12.12.76. Thereafter, the plaintiff filed an application for drawing up of the final decree. In course of the final decree proceeding, the original plaintiff having died, her legal heirs were substituted. A Civil Court Commissioner was deputed to effect the partition and the said Civil Court Commissioner submitted his report stating therein that on actual measurement it was found that the defendant had encroached upon Ac.0.007 decimals of land belonging to the plaintiff and therefore the plaintiff was in actual possession of only A.O.21 dec.3 Kadis; whereas the defendant was in possession of Ac.O.34 dec.3 Kadis. This report was dated 1.1.80. No objection https://hcservices.ecourts.gov.in/hcservices/ to the said report having been filed, on perusing the said report, the learned trial Judge accepted the same and made the decree final by order dated 31.3.80. It is against this final decree, the present appeal has been preferred." A mere perusal of it would exemplify that the ratio decidendi in this case also, is not that straight away, while the first Appellate Court is hearing the appeal, could entertain any application for ordering partition of the first item of the suit property on the ground that the property is indivisible. 18. The learned counsel for the appellant also placed reliance on AIR 1953 Madras 320 (Yandapalli Venkataraju vs. Hussain Shah and others). An excerpt from it would run thus: "In S.A.No.4 of 1942, which arose out of O.s.No.124 of 1930 in the Sub Court, Kakinada, this Court passed a decree inter alia directing a partition of item 1 of the plaint schedule into three equal shares and awarding the plaintiff an one-third share and the other contesting party who is the petitioner before me, a two-third share. Subsequent to the decree of this Court, the petitioner filed an application in the court below purporting to be under Ss.2 and 4 of the Partition Act, Act IV of 1893, praying that the provisions of that Act may be applied to him. Only the prayers were not happily worded and it is now conceded by Mr.Bhimasankaram, learned counsel for the petitioner, that the only provision under which the application was really sustainable was S.2 of the Act. The learned Subordinate Judge did not go into the merits and decide whether S.2 of the Partition Act applied and the whether the petitioner was entitled to invoke its provisions in the circumstances of this case because he considered that the decree of the High Court precluded him from going into the matter. In other words, because the High Court had directed a division of the property, he thought an application invoking the provisions of the Partition Act was not competent thereafter. In this he was obviously in error. 2. There is clear authority of this Court in "Kadir Batcha Sahib v.Abdul Rahman Sahib", 24 Mad 639 that S.2, Partition Act, can be applied though a preliminary decree defining the share of a plaintiff and directing partition had been passed. The learned Judges pointed out that the Act can be applied until the scheme of partition has been finally approved, i.e., until a final decree has been https://hcservices.ecourts.gov.in/hcservices/ passed. I therefore set aside the order of the learned Judge dismissing the application as not sustainable. He will restore the petition to his file and proceed to deal with it as an application at this stage on the merits of the application. There will be no order as to costs. 3. The petition will be disposed of expeditiously without granting any adjournment." A mere reading of it would highlight that the said decision is on a different point as in that case, the lower court misunderstood the High Court's order as though the High Court directed the lower Court to effect the division and not to conduct auction. Thereupon, His Lordship the then Hon'ble Chief Justice Rajamannar, clarified the position and highlighted that despite High Court directed for division of the property, the lower court could entertain an application for auction under Section 2 of the Partition Act. As such, the said cited decision is also not applicable to the facts and circumstances of this case. 19. The learned counsel also cited a decision of the Hon'ble Apex Court reported in AIR 1978 SC 845 (Badri Narain Prasad Choudhary and others v. Nil Ratan Sarkar). An excerpt from it would run thus: "13. It will be seen from the above analysis that the request contemplated in No.(i) is a sine qua non for directing a sale because such a request necessarily signifies his willingness to have his share converted into money, so that the co-sharers may, by means of the procedure provided in S.3 buy them out. The request for sale envisaged by S.2 must be one for public sale. If no such request has been made to the Court, S.3 cannot be brought into operation." This decision also is not on the point relating to the powers of first Appellate Court to entertain straight away the application under the Partition Act for conducting auction among co-sharers and that too, when the appeal is only as against the preliminary decree. However, the learned counsel for the appellant would clarify the position by highlighting that the Court can order owelty to be paid by the sharer, who takes more share than the other sharers. There is no quarrel over such a preposition. As such, ultimately what transpires in this appeal is that virtually the appellant could not canvass any point so as to highlight that the trial Court committed any error either in law or in fact in passing the preliminary decree. However, the grievance of the appellant is that if once again, the matter goes before the trial Court for obtaining final decree, it would be a time consuming one. https://hcservices.ecourts.gov.in/hcservices/ I am of the considered opinion that the first Appellate Court while hearing the contentious concerning the preliminary decree could not extend its jurisdiction and thereby perform certain acts, which could be performed only by the trial Court. 20. At this juncture, my mind is redolent with the common or garden principle in the field of civil law that right of appeal is a valuable right and it cannot be eroded under any circumstances. In the event of the appellant/plaintiff No.3 herein filing an application invoking the appropriate provision of the Partition Act before the trial Court, the trial Court is expected to hear both the sides and pass orders thereon and act accordingly. If any one of the parties is aggrieved by it, he having the right to agitate before the higher forum. Hence, I am of the considered opinion that taking into consideration the time factor alone straight away this Court cannot act as a Court of first instance. 21. The learned counsel for the appellant would cite various facts as if the appellant is a major shareholder as of now, because he allegedly purchased the share of one other sharer, viz., the second plaintiff Ravi Vendan and that he became entitled to half share. I am of the opinion that merely based on such oral representation from the learned counsel, this Court cannot arrive at a conclusion that he is a major shareholder. These are all matters to be placed only before the lower Court during final decree proceedings. 22. However, I make it clear that it is open for the appellant to file necessary application before the lower court during final decree proceedings and press for the same and in such an event, the trial Court shall see to it in the facts and circumstances of the case and dispose it of on merits within a period of three months. As such, with the above observation, this appeal is dismissed. Point No.2: 23. The next point for consideration is as to whether the shares allotted by the trial Court is in order. 24. All the learned advocates appearing for the parties in unison would clearly and categorically agree that consequent upon the death of Tharani Mudaliar, his share in the first item of the suit properties should be taken to have devolved, as per Hindu Succession Act on all his legal heirs, viz., his four sons, one daughter and his wife equally. However, the trial Court has not adverted to that fact. Hence, modification of the decree passed by the trial court relating to the first item of the suit properties, is warranted. Tharani Mudaliar and his four sons constituted the https://hcservices.ecourts.gov.in/hcservices/ co-parcenery and as such during his life time, each one of the co- parcener was entitled to 1/5 th share in the theatre, viz., the first item of the suit properties and on the death of Tharani Mudaliar his 1/5 th share is deemed to have devolved upon his wife, four sons and daughter equally. Consequent upon the death of Dhanammal, the mother, her share is deemed to have devolved upon her sons and daughter equally. Accordingly, it shall stand modified. 25. Civil Miscellaneous Petition Nos.13312 and 13313 of 2004 were filed by the first respondent seeking his appointment as the Receiver for Murugan Talkies, Gudiyatham being subject matter in O.S.No.114 of 1999 on the file of the Sub Court, Gudiyatham and to remove him as Receiver for Murugan Talkies, Gudiyatham, being subject matter in O.s.No.301 of 1993 on the file of the Sub Court, Vellore (now O.S.No.114 of 1999 on the file of the Sub Court, Gudiyatham) pursuant to the order dated 17.10.1994 made in I.A.No.266 of 1993 in O.S.No.301 of 1993 on the file of the Sub court, Vellore. 26. Civil Miscellaneous Petition No.14552 of 2004 is filed by the fifth respondent to modify the order made in I.A.No.266 of 1993 in O.S.No.301 of 1993 dated 17.10.1994 on the file of Sub Court, Vellore and appoint the petitioner as receiver for Murugan Talkies, Gudiyatham (being subject matter in O.S.No.301 of 1993 on the file of the Sub Court, Vellore since transferred to the Sub Court, Gudiyatham and renumbered as O.S.No.114 of 1999). 27. I am of the considered opinion that the parties are at liberty to litigate over it and seek appropriate remedy relating to such matters before the lower Court. At present, these CMPs are closed in view of the disposal of the appeal itself. 28. Relating to items 2 to 4 , the trial Court clearly found that those items were sold jointly and that the parties had no objection for dismissing the suit concerning those items and accordingly part of the suit was dismissed and as against which, none of the parties preferred appeal. 29. The trial Court has not specifically passed any order relating to enquiry into future mesne profits under Order 20 Rule 12 of Civil Procedure Code. It is an admitted fact that already party receiver was appointed by the trial Court and relating to which also there are lot of controversies among the parties. 30. The trial Court has not given any direction relating to the enquiry into future mesne profits as per Order 20 Rule 12 of Civil Procedure Code. I make it clear that in partition suits and that too, when Receiver is appointed, the parties are