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Judgment
Honourable Mr. Justice G. Rajasuria
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.
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 theplaintiffs.
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.
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/-.
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.
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?
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.
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.
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.
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.
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.
Accordingly, the Appeal Suit is partly allowed. Consequently, connected M.P.(MD) No. 1 of 2011 is closed. No costs.
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.
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.