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Madras High CourtCRP/2307/2012dismissed

Pappathi v. Ramasamy

2017-07-20Honourable Ms.Justice V.M.Velumani8 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 20.07.2017

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P.(PD)No.2307 of 2012 & M.P.No.1 of 2012 1.Pappathi 2.Tamilarasi .. Petitioners Vs.

1.Ramasamy 2.Angamuthu 3.Kathakandar (deceased) 4.Lakshmi 5.Ravi 6.Sekar .. Respondents (RR4 to 6 brought on record as legal heirs of deceased 3rd respondent vide order of Court dated 02.03.2017 by MVMJ made in C.M.P.Nos.3749 of 2017 in C.R.P.No.2307 of 2012) PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 02.01.2012 made in I.A.No.643 of 2011 in O.S.No.615 of 2010 on the file of the District Munsif Court, Namakkal.

For Petitioners : Mr.J.Ramakrishnan For R1 and R2 : No appearance For R3 : No appearance For R4 to R6 : Batta due

ORDER

This Civil Revision Petition has been filed against the fair and decreetal order dated 02.01.2012 made in I.A.No.643 of 2011 in O.S.No.615 of 2010 on the file of the District Munsif Court, Namakkal.

2. The petitioners are the plaintiffs and respondents 1 to 3 are the defendants in O.S.No.615 of 2010 on the file of the District Munsif Court, Namakkal. During pendency of the civil revision petition, third respondent died and his legal heirs were impleaded as respondents 4 to 6. The petitioners filed suit for partition and separate possession of the suit schedule property. The third respondent filed written statement and is contesting the suit. The first petitioner is the wife of one Muthu gounder, second petitioner and the respondents 1 and 2 are their children. Third respondent is brother of Muthu gounder, he entered into an agreement with the

respondents 1 and 2 to purchase the shares of the respondents 1 and 2. The petitioners filed I.A.No.643 of 2011 to amend the plaint to include the prayer that the shares of the respondents 1 and 2 to be sold to the first petitioner.

3. According to the first petitioner, the petitioners are having half share in the suit property and therefore they are entitled to purchase the shares of the respondents 1 and 2 as per Section 22 of the Hindu Succession Act. The respondents 1 and 2 did not file any counter.

4. Third respondent filed counter affidavit denying the averments made in the affidavit and submitted that he is brother of deceased Muthu gounder, who is husband of the first petitioner, father of the second petitioner and the respondents 1 & 2. The respondents 1 and 2 agreed to sell their shares in the property and entered into an agreement of sale dated 23.05.2012 and handed over the possession to the third respondent. Subsequently, due to some dispute arose with regard to the house property and common channel, the respondents 1 and 2 evaded execution of sale deed. In view of the same, third respondent filed O.S.No.378 of 2005 on the

file of the Additional District Munsif Court, Namakkal, for specific performance of the agreement of sale dated 23.05.2002. After five years of filing of the said suit by the third respondent, the petitioners in collusion with the respondents 1 and 2 filed the present suit in the year 2010. The present suit is for partition of the suit property alone and the petitioners have not filed suit for partition in respect of other properties left out by the deceased Muthu gounder. The present relief sought for is barred by limitation.

5. The learned Judge considering the averments made in the affidavit, counter affidavit and plaint, dismissed the application holding that the third respondent filed suit for specific performance of agreement of sale dated 23.05.2002 against the respondents 1 and 2 and if the said suit is decreed directing the respondents 1 and 2 to execute the sale deed in favour of the third respondent and in the present suit, if the respondents 1 and 2 are directed to execute the sale deed in favour of the petitioners, there will be conflicting judgments delivered by two different Courts; the contention of the petitioners that the respondents 1 and 2 colluding together with third respondent entered into an agreement of sale and hence, third

respondent filed suit is not believable and the petitioner has filed the present suit in the year 2010 for partition only for suit property and not for other properties left by deceased Muthu gounder.

6. Against the order dated 02.01.2012 made in I.A.No.643 of 2011, the present civil revision petition is filed by the petitioners.

7. Even though notice has been served on the respondents 1 and 2 and their names have been printed in the cause list, there is no representation on behalf of them either in person or through counsel. During pendency of the civil revision petition, third respondent died and his legal heirs were impleaded as respondents 4 to 6. No notice was sent by this Court to the legal heirs of the deceased third respondent.

8. Heard the learned counsel for the petitioners and perused the materials on record.

9. According to the petitioners, they are entitled to purchase the shares of the respondents 1 and 2 as per Section 22 of the Hindu Succession Act. The respondents 1 to 3 have colluded

together and entered into an agreement of sale dated 23.05.2002 and hence, the petitioners filed the present suit. These contentions are untenable. The respondents 1 and 2 have entered into an agreement of sale with the third respondent to sell their shares in the suit property on 23.05.2002 and handed over the possession of their shares in the suit property to the third respondent. Disputes have arisen with regard to house and channel between the respondents 1 & 2 and third respondent and therefore, the respondents 1 and 2 did not execute the sale deed as agreed upon. Third respondent filed suit for specific performance to execute the agreement of sale in the year 2005.

The petitioners have filed present suit in the year 2010 and the present application in the year 2011 and the suit is for partition in respect of the suit property alone leaving the other properties left out by the deceased Muthu gounder. In the circumstances, the contention of the third respondent that only with a view to prevent the third respondent obtaining a decree for specific performance, the petitioners and the respondents 1 and 2 have colluded together and filed the suit in the year 2010 and the present application in the year 2011, has considerable force.

10. Considering all the above facts in proper perspective, the learned Judge dismissed the application by giving cogent and valid reason. There is no irregularity or illegality in the order of the learned Judge dated 02.01.2012 warranting interference by this Court.

11. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. 20.07.2017 Index : Yes/No kj To The Principal District Munsif, Namakkal.

V.M.VELUMANI, J.

kj C.R.P.(PD)No.2307 of 2012 & M.P.No.1 of 2012 20.07.2017