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2019 Supreme(Mad) 1531
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N.SATHISH KUMAR, J.
Mathiyazhagan - Appellant
Versus
Suromani - Respondent
C.R.P.(NPD).No.3129 of 2013 and M.P.No.1 of 2013
Decided on : 04-03-2019
Advocate Appeared:
For the Appellant : Ms. R.Shase for Mr.M.Guruprasad
For the Respondents: Mr.P. Valliappan, Adv.
Headnote:
Indian Succession Act - Section 33 - declaration as to the rights - equal shares - trial Court - trial Court passed a Preliminary Decree dividing the suit property into 9 equal share and allotted one such share to the Plaintiff. The suit was decreed on 07.08.2008. Thereafter in the year 2010 an Application was filed for passing Supplementary Preliminary Decree by the Revision Petitioner on the ground that in the preliminary decree no share has been allotted to the Revision Petitioner and also Respondent Nos.2 and 3. Preliminary Decree passed in the Partition suit does not contain any declaration as to the rights of the Revision Petitioner who remained exparte in the suit. Therefore, the Revision Petitioner is entitled to seek for modification of preliminary decree. The shares have been allotted as per Indian Succession Act not under Hindu Succession Act – Held, revision petitioner now, by way of this application wants to establish that they are entitled to more shares and their share to be declared under Indian Succession Act. According to them the Court below while passing the Decree and Judgment not granted Decree as per Indian succession Act. 4th and 7th Defendants have already appeared before the trial Court and their stand also that they are entitled to equal shares in the property. There is a triable issue that whether the parties are governed by Christian Religion or Hindu Joint family. Therefore, now the Revision Petitioner cannot by way of this application to undo the decree which is passed in the year 2008. They ought to have filed an appeal challenging the Decree and Judgment. Even the trial court has passed a decree and the decree is considered to be bad in law, the remedy open to the party is to approach the higher forum. They not to challenge the decree by way of application to amend the decree. Admittedly the suit was decreed on 7.8.2008. They have not filed any appeal. Whereas this application has been filed only on 1.3.2010 almost after 2 years. Therefore, I am of the view that the Revision Petitioner is not entitled to seek for an amendment of decree. Hence, the Revision Petition is dismissed - However taking into consideration of the specific pleadings of the plaint and as the impact on the decree passed by the trial Court, if the plaintiff is found to be Indian Christian the mode of allotment of shares certainly affect the rights of the parties. Therefore liberty is granted to the Revision Petitioner to file an Appeal before the Appellate Court/Review before same Court with an application to condone the delay of 2 years. On such application, the Appellate Court/Court shall also take into consideration of pendency of this petition from the year 2010 till this date, such delay shall be excluded since the revision petitioners have bonafidely prosecuting this application without filing any appeal - Petition is dismissed
ORDER :
This Revision Petitioner has been filed against the fair and final order passed by the First Additional District Munsif in I.A.No.117 of 2010 in O.S.No.191 of 2007 for Supplementary Preliminary Decree.
2. The application has been filed by the Revision Petitioners to pass a supplementary preliminary decree in the suit filed by the allotting 5/23 share to the Revision Petitioners 2, 3 and 5 each and to declare 2/27 share to the Revision Petitioners 1, 4 and 6 each. This application has been filed on the ground that the First Respondent/ Plaintiff has filed suit for partition and separate possession to divide the suit property into 9 equal shares and allot one such share to the First Respondent/Plaintiff.
3. In the plaint itself it has been specifically stated that one Mr.Deivasigamani the father of the parties is Christian. Therefore, the shares ought to have allotted under Section 33 of the Indian Succession Act. The suit was contested only by the Respondents 2 and 3 viz., 4th and 7th Defendants.
4. The trial Court passed a Preliminary Decree dividing the suit property into 9 equal share and allotted one such share to the Plaintiff. The suit was decreed on 07.08.2008. Thereafter in the year 2010 an Application was filed for passing Supplementary Preliminary Decree by the Revision Petitioner on the ground that in the preliminary decree no share has been allotted to the Revision Petitioner and also Respondent Nos.2 and 3. Preliminary Decree passed in the Partition suit does not contain any declaration as to the rights of the Revision Petitioner who remained exparte in the suit. Therefore, the Revision Petitioner is entitled to seek for modification of preliminary decree. The shares have been allotted as per Indian Succession Act not under Hindu Succession Act. Hence sought to pass a Supplementary Preliminary Decree.
5. The respondents objected the above application on the ground that the decree is passed on 7.8.2008. The petitioners are not entitled to modify the preliminary decree. The trial court by its order dated 30.03.2013 after hearing both sides dismissed the application, against which the present revision is filed.
6. Learned counsel appearing for the Revision Petitioner submits that though the Revision Petitioner remained exparte in the suit filed for partition, only the 4th and 7th defendants contested the suit. While passing the Preliminary Decree, the trial court has not declared the rights of the revision Petitioner as contemplated under Order 20 Rule 18 of C.P.C. Therefore, the Preliminary Decree can be modified and Supplementary Preliminary Decree can be passed enabling the parties to get their rights declaring the Preliminary Decree. It is the further contention of the learned counsel for the Revision Petitioner that the plaint pleading itself clearly shows that parties are Indian Christians. Therefore, the trial court while passing the Preliminary Decree ought to have granted a decree as per Indian succession Act, whereas the trial court granted equal shares. Hence, the Revision Petitioner is entitled to seek for modification of Preliminary Decree by passing Supplementary Preliminary Decree. In support of his contention he relied upon a Judgment reported in Ganduri Koteshwaramma and Another v. Chakiri Yanadi and Another [2011 (9) SCC 788].
7. Learned counsel appearing for the respondent on the other hand submitted that the preliminary decree passed in the year 2008 and the Application has been filed only in the year 2010 and the rights of the parties have been declared in the preliminary decree itself. Without resorting the Appeal, they cannot challenge the Preliminary Decree on the ground that their shares have not been declared. The suit has not decided in exparte. In fact 4th and 7th Defendants filed written statement. Their written statement clearly shows that the question of religion itself is in issue. They have admitted to pass the preliminary decree as per Hindu Succession Act. Therefore, now it is far f
