M.N. Manoharan vs N.V. Rangachari

R. Mala, J.—The Civil Miscellaneous Appeal arises out of decretal Order dated 17.8.2009 made in A.S. No.130 of 2007 on the file of the learned Second Additional Subordinate Court, Salem, reversing the decretal Order dated 20.4.2006 made in I.A. No. 1929 of 2004 in O.S. No.597 of 1997 on the file of the Principal District Munsif, Salem.

The Appellants herein are the Defendants 6 to 9 and Petitioners in I.A. No.1929 of 2004 in O.S. No.597 of 1997. The Respondents 1 & 2 herein/Defendants 8 & 9 in I.A. No.1929 of 2004 t viz., N.V. Rangachari and Vedhavalli are the Appellants in A.S. No.130 of 2007.

Originally, the suit property is belonging to one Thirumalai Iyer and Yasodha Ammal. Admittedly the Suit in O.S. No.397 of 1976 was filed by the legal heirs of Thirumalai Iyer for declaration of title and recovery of possession or in the alternative to partition the Plaintiffs'' 1/3rd share and separate possession with mesne profits. A preliminary decree has been passed stating that the Plaintiffs therein are entitled to 8/25 share in the house bearing old Door No.43 and Defendants 1 & 4 are entitled to 8/25 share and heirs of Second Defendant, who are the Appellants herein, are entitled to 8/25 share and one Jayalakshmi is entitled to 1/25 share, which was purchased by the Respondents 1 & 2 herein. Because of the increase of pecuniary jurisdiction, the case was transferred to Principal District Munsif, Salem and re-numbered as O.S. No.597 of 1997. A final decree was passed in I.A. No. 1929 of 2004 in O.S. No.597 of 1997, dated 20.4.2006, on the basis of the Report filed by the Commissioner stating that the Petitioners 1 to 4/Appellants 1 to 4 herein are entitled to the property in Door No.1B and the Defendants 8 & 9/Respondents 1 & 2 herein are entitled to 1/9th share, since the property in Door No.1B is not divisible, the Petitioners 1 to 4 therein are directed to deposit a sum of Rs. 90,988/- to the Defendants 8 & 9 therein towards their 1/9th share. Against which, the Defendants 8 & 9/Respondents 1 & 2 herein have filed an Appeal in A.S. No.130 of 2007 and the same has been allowed and the Suit was remanded back to the Trial Court, against which, the Appeal has been preferred by the Defendants 6 to 9, who are the Petitioners 1 to 4 in I.A. No.1929 of 2004.

Learned Counsel for the Appellants submitted that the Respondents 1 & 2 herein are the purchasers of the property from the Third Defendant/Jayalakshmi. During the pendency of the Suit, before the Commissioner, the Respondents 1 & 2 herein had filed a joint Memo stating that only the property in Door No.1B is available for partition and on that basis only, the Commissioner has measured the property in Door No.1B and filed his Report, which finds place in page No.12 of the typed set of papers filed by the Appellants herein. In para-3 of the Commissioner''s Report, it was specifically mentioned that Door No. 1A is already sold and property at Door No.1B is available to divide it into 9 shares and allot 8 such shares to the Petitioners and remaining 1/9 share alone to be allotted to the Respondents. In pursuance of the Memo only, the property in Door No.1B has been measured by the Commissioner, who filed a Report, stated that Door No.1 B is not divisible. So the Respondents herein filed an objection stating that the property is divisible.. On the basis of the Commissioner''s Report, the Trial Court has passed a final decree stating that the property in Door No.1B is not divisible and therefore, the Petitioners/Appellants herein are directed to pay a sum of Rs. 90,988/- to the Defendants 8 & 9/Respondents 1 & 2 herein towards their 1/9th share, against which, the Defendants 8 & 9/Respondents 1 & 2 herein have preferred an Appeal in A.S. No.130 of 2007 on the ground that the property in Door No.1B is available for partition. But the First Appellate Court has erroneously remanded the matter to the Trial Court for division of the property in Door No. 1B along with Door No.1A as per the warrant. Hence, the First Appellate Court has committed an error in remanding the matter back to the Trial Court, since the Defendants 8 & 9 Respondents 1 & 2 have filed a joint Memo before the Commissioner stating that Door No.1A is already sold and the property in Door No.1B alone is available for partition. That factum has not been considered b) First Appellate Court. Since the Suit is of the year 1976 and for past 4 decades, the Suit is pending, he prayed for setting aside the remand order passed by the First Appellate Court and confirming the order passed by the Trial Court. To substantiate his arguments, he relied upon the decision reported in Maya Devi (dead) through LRs. v. Raj Kumari Batra (Dead) through LRs. and others, 2010 (9) SCC 486.

Resisting the same, the learned Counsel for the Respondents 1 & 2 submitted that the Respondents 1 & 2 are the purchasers of the property in Door No.1B from Third Defendant Jayalakshmi (since died). They have not disputed that they had given the joint Memo before the Commissioner for division of property in Door No.1B. Their main grievance is that the property is a divisible one. He further submitted that the) are in possession of the property in Door No.113 and they are entitled to 1/9th share in the property and not the value of their share in the property in Door No.1B. Hence, he prayed for dismissal of this Appeal.

Considered the rival submissions made on both sides and the materials available on record.

It is an admitted fact that the Appellants herein are the legal heirs of the Second Defendant, who is one of the sharers of the suit property. A preliminary decree passed in O.S. No.397 of 1976 is not disputed and as per the preliminary decree, the Plaintiffs therein are entitled to 8/25 share and the legal heirs of the First and Fourth Defendants are entitled to 8/25 share and the heirs of Second Defendants are entitled to 8/25 share and the Third Defendants is entitled to 1/25th share, which was purchased by the Defendants and 9/Respondents 1 and 2 herein. Even though Respondents 1 & 2 herein have purchased the property in Door No.1B as if they are .entitled to 9/25 share, as per the Act, they are entitled to 1/25 share.

As per the Commissioner''s Report, the Respondents 1 & 2 herein filed a Memo stating that the property in Door No.1A has already been sold and the property in Door No.1B alone has been available for partition. In view of the joint Memo filed by the Respondents 1 & 2 herein and Appellants, the Commissioner is requested to divide the property in Door No.1B into 9 shares and allotted I share to the Respondents 1 & 2 herein. The entire land is narrow strip of land with buildings. In Commissioner''s report, it was stated as follows:

"As above said the house in which the remaining 9 shares are to be divided is incapable of division so for the 1/9 share of the Respondent value may be fixed by the Honorable Court and such value in money may be given to him. This will be the possible and advantageous mode of partition for both the parties"

On the basis only, the Trial Court passed a final decree and fixed the value at Rs. 90,988/- for 1/9th share of the property in Door No.1B. In my view, without considering the Report filed by the Commissioner, the First Appellate Court in Para-7 of the judgment, stated that the Commissioner ought to have divided the property in Door No.1B along with the property in Door No.1A in accordance with the warrant, is erroneous.

Now it is appropriate to incorporate the following portions in Para-3 & 4 of the Commissioner''s Report.

"3..... The Petitioners Memo reveals that D. No. 1A sold already and D. No.1B alone is available to divide it into 9 shares and allot 8 such shares to the Petitioner and remaining 1/9 share alone to be allotted to Respondent.

4......But as per Memos given to me by both parties the properties bearing Door No.1 A has already been sold and in this sold portion the Respondent have got 8 shares out of 17 shares. So deducting the 8 shares out of the 17 shares the remaining 9 shares alone have to be divided and the property shown as A, B, C, D, E, F, G, H is to be divided into 9 shares."

From the above Paragraphs, it shows that once the Respondents 1 & 2 have specifically admitted that the property in Door No.1A has already been sold, it is not available for partition. Furthermore, the Respondents 1 & 2 viz., Rangachari and Vedhavalli purchased the property in Door No. 1B during the pendency of lis.

At this juncture., it is appropriate to consider the decision relied upon by the learned Counsel for the Appellants Maya Devi (dead) Through L.Rs. v. Raj Kumar Batra (Dead) through L.Rs. and others, 2010 (9) SCC 486. In Para-31, it was held as follows :

31....From a reading of the impugned order of the Appellate Court it is clear that the Appellate Court was conscious of the fact that the litigation has been prolonged for many years. It, therefore, decided to resolve the matter on merits rather than remitting the same back for a fresh disposal by the learned Single Judge....."

The following details are given in the Plan in respect of the building at Door No.1B, Bungalow Street (Now called Kanagaraja Ganapathy Street), Ward 9, Salem-636001 :

Area Details:

In Sq.Ft.

Ground Floor

Area of the site

1067.565

Area of R.C. Terraced Portion

490.675

Area of Mangalore tiled Portion

446.730

Area of Open Space

130.160

First Floor

Area of R.C. Terraced Portion

96.000

The measurement of the building from East to West is only 10.4 feet including the walls. Since it is incapable of division into 1/9 share (i.e.) 113.9 sq.ft. and even if it is divided, it will not be convenient and suitable for enjoyment.

On applying the dictum of the Apex Court Maya Devi (dead) through L.Rs. v. Raj Kumari Batra (Dead) through L.Rs. and others, 2010 (9) SCC 486, I am of the considered view, the Trial Court has correctly held that since the property in Door No. 1B is not divisible, the Petitioners 1 to 4/Appellants herein are directed to deposit a sum of Rs. 90,988/- to the Defendants 8 & 9/Respondents 1 & 2 herein towards their 1/9th share. In my considered opinion, the First Appellate Court has committed an error in remanding the matter back to the Trial Court for dividing the property in Door No. 1B along with Door No.1A. Therefore, it is hereby set aside.

In Fine -

This Civil Miscellaneous Appeal is allowed without costs, setting aside the decretal Order dated 17.8.2009 made in .A.S. No.130 of 2007 on the file of the learned Second Additional Subordinate Court, Salem and confirming the decretal Order dated 20.4.2006 made in I.A. No.1929 of 2004 in O.S. No.597 of 1997 on the file of the Principal District Munsif, Salem.

Consequently, connected Miscellaneous Petition is closed.