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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
Madamkumar - Petitioner
Versus
Padmavathi and ors. – Respondents
C.R.P.(MD)No.1612 of 2017 and C.M.P.(MD)No.9107 of 2017
Decided On : 02-02-2024
CIVIL REVISION PETITION - PARTITION SUIT - Article 227 of the Constitution of India, Order 8 Rule 9 C.P.C. - The court discussed the provisions of Article 227 of the Constitution of India, which allows for the revision of orders made by subordinate courts, and Order 8 Rule 9 of the C.P.C., which pertains to the filing of additional written statements. The court interpreted these provisions to conclude that the 20th defendant, as a purchaser and not a co-owner, lacked the standing to raise the plea of partial partition. The court emphasized that such a plea can only be raised by co-owners, and since the original defendants did not raise this issue, the 20th defendant's application was dismissed.
Fact of the Case:
The plaintiffs filed a suit for partition of ancestral properties, seeking a 1/4 share. The 20th defendant, a purchaser from some of the original defendants, sought to file an additional written statement claiming the suit was bad for partial partition, as not all ancestral properties were included. The trial court dismissed this application, leading to the current revision petition.
Finding of the Court:
The court found that the 20th defendant, being an alienee and not a co-owner, had no right to contest the suit on the grounds of partial partition. The trial court's dismissal of the application was upheld, as the original defendants did not raise the plea, and the application was seen as an attempt to delay proceedings.
Issues: Whether the 20th defendant, as a purchaser, has the right to raise the plea of partial partition in a suit filed by co-owners.
Ratio Decidendi: The court held that only co-owners can raise the plea of partial partition, and since the original defendants did not raise this issue, the 20th defendant, as a third-party purchaser, lacked the standing to do so. The court relied on precedents that established this legal principle.
Final Decision: The Civil Revision Petition was dismissed, and the trial court was directed to expedite the proceedings of the partition suit.
ORDER :
PRAYER:- Civil Revision Petition is filed under Article 227 of the Constitution of India against the fair and decreetal order passed I.A.No. 683 of 2017, in O.S.No.421 of 2010, dated 06.09.2017, on the file of the Principal Subordinate Judge, Karur.
The Civil Revision Petition is directed against the order passed in I.A.No.683 of 2017 in O.S.No.421 of 2010, on the file of the Principal Subordinate Court, Karur, dismissing the petition filed under Order 8 Rule 9 C.P.C.
2. The respondents 1 to 4 as plaintiffs have filed the suit for partition of the suit properties and allotment of 1 / 4 share to the plaintiffs. Originally the suit was filed against 20 defendants and pending suit, the sixth defendant had died and hence his legal representatives were impleaded as defendants 21 and 22. It is not in dispute that the defendants 1 to 3, 7, 9, 20 to 22, by filing their written statement, are contesting the suit. When the trial was in part heard stage, the 20th defendant has filed the above application under Order 8 Rule 9 C.P,.C., seeking permission to file the additional written statement. The respondents/plaintiffs have filed their counter statement raising serious objections. The learned Subordinate Judge, after enquiry, has passed the impugned order dismissing the said petition. Aggrieved by the order of dismissal, the 20th defendant has preferred the present Civil Revision Petition.
3. The main contention of the revision petitioner / 20th defendant is that during the cross-examination of P.W.1, she has deposed that Omanthira Moopan had left some other ancestral properties which were not yet partitioned among the legal heirs of Omanthira Moopan, that the said properties have not been included in the present suit, that when the 20th defendant was discussing with his Counsel for cross-examination of P.W.2, he came to know the above evidence of P.W.1, that since the properties belonging to Omanthira Moopan have not been included in the suit, the suit itself is bad for partial partition, that since he has not taken the said plea in the earlier written statement, he was advised to file the additional written statement in that aspect and that no prejudice would be caused to the other side, if the additional written statement is received, otherwise, the 20th defendant will be seriously prejudiced, which cannot be compensated by any other means.
4. The main defence of the plaintiffs is that the 20th defendant, being the purchaser, is not entitled to raise the plea of partial partition and that since the 20th defendant has purchased a portion of the suit properties from the defendants 1 to 3, he cannot be allowed to raise such a plea.
5. It is evident from the pleadings that the revision petitioner / 20th defendant is a purchaser from the defendants 1 to 3, that the suit properties are the ancestral properties of Omanthira Moopan – great grandfather of the plaintiffs 2 to 4, that the said Omanthira Moopan had died leaving behind him his wife – Periyakkal, his sons – Andiyappan, Swaminathan and Maruthan, that one Malaiyalan – the eldest son of Omanthira Moopan had predeceased him, that the defendants 1 to 3 are the heirs of the said Malaiyalan, whereas the plaintiffs are the heirs of Maruthan, the defendants 4 to 10 are the heirs of the said Swaminathan and that the defendants 11 to 19 are the legal heirs of the said Andiyappan.
6. As rightly pointed out by the learned Counsel for the plaintiffs, the trial Court has rightly observed that the defendants 1 to 3 admittedly co-owners, have not raised any pleading that the said ancestral properties of Omanthira Moopan are not included in the present suit and as such, the suit is bad for partial partition. The learned trial Judge has specifically observed that the 20th defendant being a third party / alienee from the defendants 1 to 3, has no right or locus standi to raise the plea of partial partition.
7. The learned Counsel for the revision petitioner has relied on the judgment of this Court in
A third-party purchaser lacks the standing to raise the plea of partial partition in a suit for partition among co-owners, as this right is reserved for the co-owners themselves.
In partition suits, all co-sharers must be included, and failure to do so renders the suit maintainable only after necessary amendments.
The main legal point established in the judgment is the interpretation of joint family property and the necessity of impleading necessary or proper parties in a suit.
Defendant's right to take contradictory/alternative plea in the written statement and relevance of the partition deed to the suit schedule property
Order 6 Rule 17 proviso restricting post-trial plaint amendment applies to plaintiffs, not defendants in partition suits to prevent multiplicity.
A party cannot introduce repetitive claims in an additional written statement without new pleas.
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