Vasim Raja v. Janab.B.C.A. Mohammed Ibrahim (Died),
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 10.09.2024
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN and C.M.P(MD)No.8018 of 2024 1.Vasim Raja 2.Jahir Niyas ... Petitioners / Petitioners / Third Parties / Proposed Respondents 92 & 93 Vs.
1.Janab P.C.A.Mohammed Ibhrahim (Died) 2.P.C.A.Abdul Ajees (Died) 3.P.C.A.Mohammed Jabbar (Died) 4.Alima (Died) 5.M.Mohammed Rabeek 6.M.Rajiya 7.Ayusharahina 8.Mohammed Sahabudeen 1/15
9.Fathima Rajana 10.Parishabeevi 11.A.Sabeer Ahamed 12.A.Nasir Ahamed 13.A.Nasir Moideen 14.Ayushabeevi 15.Alavudeen 16.A.Mohammed Hussain 17.P.C.A.Abdul Salam (Died) 18.Badurunnisha (Died) 19.Ummal Hasanath (Died) 20.Ashmabeevi 21.Janab.Habeeb Rahman 22.Rameelabeevi 23.Abdul Hameed 24.Samsunissha Beevi (Died) 25.Julaihabeevi (Died) 26.Thajunissha Bibi 27.Noorjahan (Died) 2/15
28.Jubaithabeevi 29.Asiabibi 30.Abdulkasim 31.Pappammal 32.Janab.Khajamoideen (Died) 33.Mymoonbeevi 34.Janab.Kaliloor Rahman 35.Janab.Mohammed Farook 36.Jubaithabibi 37.Janab.Mohammed Sharif 38.Kairunnisha Begum 39.Thajudeen 40.Junathunisha Begum 41.Kathijabeevi 42.Aminabeevi 43.Shajahan (Died) 44.Sabirabeevi (Died) 45.Jawaharnisha (Died) 46.Basheera Begum 3/15
47.Ayushabeevi 48.S.A.Habeeb Rahman 49.S.A.Abdul Rasheeth 50.S.A.Sulthan Ibrahim 51.S.A.Jamal Mohammed 52.S.A.Ayusha 53.S.A.Khaja Moideen 54.Salihabeevi (Died) 55.Fathimabeevi 56.Abdulkani 57.Bowjiya Begum 58.Mohammadhali (Died) 59.Aarifabegum 60.Habeebunisha Begum (Died) 61.Mohammed Farook 62.Sowkathali 63.Julaithabegum 64.Saprooth Begum 65.Mumthaj Begum (Died) 4/15
66.Sarammal 67.Ahamed Sait 68.Jabarullah 69.Jamal Mohammed 70.Akbar Ali 71.Mohammed Iliyas 72.Arifa Begum 73.Kaliloor Rahman 74.Ayushabeevi 75.Mohammed Sirajudeen 76.M.Jamanbegum 77.A.Mohammed Sigabudeen 78.S.Akilabegum 79.Junaithaparveen 80.Jaithoonbanu 81.A.Habeeb Rahuman 82.A.Mujibur Rahuman 83.M.Fathima Begum 84.J.Amina Parveen 5/15
85.A.Kaleel Ahamed 86.Samsabegum 87.Mohammed Thowbig 88.Sulthan Thajun 89.Mohammed Tharish 90.Thamimul Ansari 91.A.Sheik Abdullah 92.Syed Ibrahim 93.Asifmoideen 94.A.Mohammed Ismail 95.M.Sabura Begum 96.M.Mohammed Iliyas 97.Sumaiah Begum 98.M.Hajrammal 99.M.Syed Abuthahir 100.A.Syed Mohammed 101.Mohammed Jiyavudeen 102.Mohammed Farook 103.Jahir Ali 6/15
104.Mujibur Rahuman 105.Ubaidur Rahuman 106.Mohammed Yasin 107.Aminabegum ... Respondents / Respondents / Respondents / Defendants / Prayer : Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the Ex-Order and Fair Order dated 14.08.2023 made in I.A.No.500 of 2022 in I.A.No.43 of 2018 in O.S.No. 1 of 2012 on the file of the Sub Court, Vedasandur and allow the above Civil Revision Petition.
For Petitioner : Mr.K.Govindarajan for Mr.J.Lawrence For Respondents : R.1 to R.4, R.17 to R.19, R.24, R.25, R.27, R.32, R.43 to R.45, R.54, R.58, R.60 & R.65 - Died Mr.Mohammed Athiff for Mr.C.Narendran for R.5, R.7 to R.9, R.28 to R.31, R.46, R.47, R.59, R.69 to R.79, R.81 to R.91, R.93, R.96, R.98 to R.105 Mr.M.Kalifullah for R.51, R.55 & R.57 R.11, R.13 to R.16, R.39, R.49, R.53, R.95, R.97, R.107, R.35, R.40 & R.56 - No Appearance 7/15
R.20, R.21, R.33 to R.35, R.37 & R.42 - Addressee Left R.22, R.23, R.26, R.36, R.40, R.52, R.61 to R.63 - No such person in this address R.6, R.10, R.38, R.41, R.64, R.67, R.68, R.80, R.94 - Deceased R.48 - Missent R.12 - Addressee cannot be located R.42, R.61 to R.63 - Left R.52 & R.68 - Unclaimed R.92 - Out of station R.106 - Proof not filed R.66 & R.67 - Addressee absent R.50 & R.106 - Insufficient address R.56 - Service awaited
ORDER
Heard both sides.
2.The case on hand raises the question as to whether the subsequent purchaser is entitled to get himself impleaded in final decree proceedings in a suit for partition.
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3.O.S.No.69 of 1983 was instituted before the Sub Court, Dindigul seeking partition and separate possession. Preliminary decree was passed on 29.11.2013. Defendants 50 to 58 filed A.S.No.19 of 2014 on the file of Principal District Judge, Dindigul. It was dismissed on 19.07.2017. The appellants filed S.A(MD)No.175 of 2021 before this Court. It was dismissed on 18.03.2021.
4.I.A.No.43 of 2018 for passing final decree was filed by the plaintiffs / legal heirs. In the said final decree proceedings, I.A.No.500 of 2022 was filed by the revision petitioners herein. The revision petitioners herein purchased the undivided shares allotted to various defendants. The revision petitioners claim 567.89 shares out of 780 shares. The Court below dismissed the IA on the ground that they had purchased the undivided share after passing of the preliminary decree and that they are not necessary parties in the final decree proceedings. This order was passed on 14.08.2023. Questioning the same, this Civil Revision Petition has been filed.
5.The learned counsel for the revision petitioners reiterated all the contentions set out in the grounds of revision and called upon this Court to set aside the impugned order and grant relief as prayed for. 9/15
6.Per contra, the learned counsel for the plaintiffs submitted that the purchase by the revision petitioners is hit by lis pendens and that final decree to be passed will be binding on the petitioners herein and that they are not necessary or proper parties. The learned counsel relied on the decisions reported in 2001 (1) CTC 19 (Bakthavatsalam Vs Anjapuli & Others) and 2006 (3) CTC 543 (Nachammal Vs Lavangammal) and an unreported decision rendered in C.R.P.No.626 of 2018 (Malar Vs Govindasamy & Others) on 30.07.2020. No doubt all the aforesaid three decisions support the contentions advanced by the learned counsel for the plaintiffs. But there is a factual distinction.
In the cases relied on by the learned counsel for the plaintiffs, the party seeking to implead himself in the final decree proceedings set up rival title over the suit property. In the case on hand, there is no such rival claim. All that the revision petitioners seek to do is to step into the shoes of their vendors. Admittedly, the revision petitioners' vendors had been allotted some shares in the suit property. If the final decree proceedings, the property will have to be divided by the metes and bounds and appropriate allotment made.
share that is going to be allotted in favour of their vendors should be allotted in their favour.
7.I find this request to be eminently fair and reasonable. In fact a learned Judge of this Court in the decision reported in 2016-3-LW 283 (Suguna Vs Subramani & Others) had held that subsequent purchaser has to be impleaded as a party in the final decree application. The learned counsel had relied on the decisions of the Hon'ble Supreme Court reported in (2005) 11 SCC 403 (Amit Kumar Shaw Vs Farida Khatoon). The learned counsel for the revision petitioners draws my attention to the decision reported in (2009) 13 SCC 179 (Maddineni Koteswara Rao Vs Maddineni Bhaskara Rao & Another). Paragraphs 18 and 19 of the said decision are as follows:
"18. It is well settled that a suit for partition stands disposed of only with the passing of the final decree. It is equally settled that in a partition suit, the court has the jurisdiction to amend the shares suitably, even if the preliminary decree has been passed, if some member of the family to whom an allotment was made in the preliminary decree dies thereafter. The share of the deceased would devolve upon other parties to a suit or 11/15
even a third party, depending upon the nature of the succession or transfer, as the case may be. The validity of such succession, whether testate or intestate, or transfer, can certainly be considered at the stage of final decree proceedings.
19.An inference to this effect can suitably be drawn from the decision of this Court in the case of Phoolchand v. Gopal Lal (AIR 1967 SC 1470). In that decision, it was observed as follows:
There is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if the circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented...
it would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specifications of shares in the preliminary decree varied before a final decree is prepared. If this is done there is a clear determination of the rights of the parties to the suit on the question in dispute and we see no difficulty on holding that in such 12/15
cases there is a decree deciding these disputed rights, if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court." It was held that the suit for partition would stand disposed of only in passing of the final decree and that the share of the person in whose favour the preliminary decree has been passed would devolve upon either his natural legal heirs or in favour of even third party to whom undivided share has been alienated.
8.I am therefore more than satisfied that the revision petitioners are necessary and proper party to the final decree petition. Of course, their role is rather limited. Their impleadment is only formal in nature so as to avoid future litigation. Whatever share is proposed to be allotted in favour of the vendors will have to be allotted in favour of the revision petitioners in the final decree itself. Only to protect the rights, they are impleaded. It is reiterated that they cannot agitate on the merits of the matter. The impugned order is set aside.
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9.This Civil Revision Petition is allowed accordingly. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
10.09.2024 NCC : Yes/No Index : Yes / No Internet : Yes/ No MGA To The Sub Court, Vedasandur.
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G.R.SWAMINATHAN, J.
MGA 10.09.2024 15/15