IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11-03-2026 CORAM THE HON'BLE MR.JUSTICE K.KUMARESH BABU and CMP No. 920 of 2022 ANB Nagarajan (died) 1.Jayalakshmi Ammal

2.N.Balaji

3.Umamaheswari

4.Madurambika ..Petitioner(s)

Vs Govindarasan (died)

1.Duraiganesan

2.Sureshbabu 3.Venkatesan

4.Mahesh Alamelu Ammal (died)

5.Vairam

6.Muthammal

7.Thangam

8.Dhanam ..Respondent(s)

Prayer : This petition to set aside the Para Nos. 6 to 8 of the fair and decretal order dated 19.01.2021 made in I.A. No. 56 of 2020 in O.S. No. 351 of 2004 on the file of the Learned Principal District Munsif Court, Kallakurichi by allowing this Civil Revision Petition.

For Petitioner(s): Mr.N.Manoharan For Respondent(s): No appearance

O R D E R

This Civil Revision Petition has been filed to set aside Para Nos. 6 to 8 of the fair and decretal order dated 19.01.2021 made in I.A. No. 56 of 2020 in O.S. No. 351 of 2004 on the file of the Learned Principal District Munsif Court, Kallakurichi by allowing this Civil Revision Petition.

2. Despite notice being served and names printed in the cause-list, when the matter was taken for hearing on 04.03.2026 and today’s date(11.03.2026), there is no representation on the side of the respondents. Hence, they set exparte.

3. The learned counsel for the petitioner would submit that a suit was instituted by the petitioner’s father for declaration of title with consequential permanent injunction, in which after the death of the petitioner’s father, they were all impleaded as plaintiffs in the suit. He would submit that the suit property was originally owned by the first defendant, who had for himself and on behalf of his sons, had sold the property to one Chinnapillai Ammal under a registered sale deed from whom the father of the petitioner had purchased the same.

4. While that being so, the respondent 5 to 8 had instituted the suit for partition against the said Govindarajan and others for partition and separate possession, in which a preliminary decree had also been passed. He would submit that the property was sold by the said Govindarajan, on behalf of himself and respondents 1 to 4, in which respondents 5 to 8 were also attestors. He would submit that the said decree of partition itself is null and void with an intention to defeat the rights of the petitioners. Even though the respondents 1 to 4 were originally set exparte, they had taken out an application under Order XXII Rule 10A of the Code of Civil Procedure to recognize them as legal heirs of respondents 5 to 8 on the ground that the grandmother, who had been given a share in the partition, had executed a Will in their favour, and that the other respondents, who had benefitted under the partition, had also executed a sale deed in favour of their mother and therefore, they would have a right and interest in respect of the property, that was allotted in favour of their grandmother.

5. He would submit that at any event, by application of Section 43 of the Transfer of Property Act, 1882 would entitle the petitioners to seek for declaration as prayed in the suit even assuming that such partition decree was a valid decree. In such circumstances, the petitioners have taken out an application seeking to amend the plaint to include the pleadings with regard to the same, particularly, the provisions of Section 43 of the Transfer of Property Act, 1882.

6. He would submit that the Court below, without considering the provision of Section 43 in a cryptic order has rejected the same by holding that the petitioner(s) is attempting to create a new case rather than the one that had been pleaded in the plaint. He would submit that originally, the suit had been filed seeking for a declaration to declare the title and even in the said plaint, specific pleadings had been made with regard to the earlier partition suit filed inter se between the respondents to be a collusive suit and the same to be not binding. He would submit that only on filing of an application under Order XXII Rule 10A by respondent