Plaintiff who purchased all undivided shares in joint family property except the defendant's 824 sq.ft sought partition; trial court dismissed partition and decreed her pre-emption counter claim. Appeal court held Sections 4 and 5 Partition Act apply only at final decree stage, and the counter claim was time-barred under Article 97 Limitation Act.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
A.S.(MD)No.206 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Judgment Reserved on Judgment Pronounced on 19.07.2024 02.08.2024
CORAM
JUSTICE N.SESHASAYEE and JUSTICE P.VADAMALAI
A.S.(MD)No.206 of 2020 and C.M.P(MD)No.7257 of 2020
S.M.Venkatachalam ... Appellant/Counter claim respondent/Plaintiff Vs. Valli ... Respondent/Counter claim Petitioner/Defendant
Prayer: Appeal Suit is filed under Section 96 r/w Order XLI of C.P.C against judgment and decree dated 12.06.2020 in O.S.No.37 of 2015 and counter claim
in I.A.No.377 of 2015 on the file of the Additional District and Sessions Judge, Sivagangai.
For Appellant : Mr.H.Lakshmi Shankar For Respondent : Mr.R.Sundar Srinivasan
JUDGMENT
(Judgment of the Court was delivered by N.SESHASAYEE, J.)
This appeal is preferred by the plaintiff challenging both the decree dismissing the suit for partition as well as the decree passed in favour of the defendant for allowing her counter claim for exercising a right of pre-emption.
1/8
A.S.(MD)No.206 of 2020
2. The facts of the case are as follows:
2/8
A.S.(MD)No.206 of 2020
e) On 21.06.2011, the plaintiff had purchased the entire 1/3rd share of Sornalingam Chettiyar from his heirs. Subsequently, under Ex.A7 dated 19.09.2011 and Ex.A8 dated 29.08.2013, sale deeds, the plaintiff had purchased the shares of two of the daughters of Krishnan Chettiar born to him through his first wife. In short, the plaintiff had purchased the entire share of all the sharers of the property except 824 sq. ft. that represents the share of the defendant. In these circumstances, the plaintiff had laid the suit for partition.
3.1. During trial, the plaintiff examined himself as P.W.1 and produced Exs.A1 to A11. Few among those documents had already been introduced. For the defendant, she entered the box to depose as D.W.1 and she produced Ex.B1, a copy of the legal notice which the plaintiff and another had issued.
3.2. On appreciating the evidence before it, the trial Court chose to dismiss the
3/8
A.S.(MD)No.206 of 2020
plaintiff’s suit for partition essentially because it chose to decree the counter claim claiming pre-emption and the trial Court has not relied on Section 22 of the Hindu Succession Act, 1956, but relied on Sections 4 and 5 of the Partition Act, 1893. These decrees are now under challenge.
3. The points for consideration are:
5. Heard both sides. Arguing for the appellant, Mr.H.Lakshmi Shankar, learned counsel for the appellant submitted as follows:
4/8
A.S.(MD)No.206 of 2020
sold, or, where the subject matter of the sale does not admit of physical possession of the whole or part of the property, when the instrument of sale is registered. In the instant case, all the four sale deeds, executed between 17.05.2011 and 29.08.2013 and the nature of property being a vacant site, a party cannot take physical possession thereof and hence, terminus quo for completing the period of limitation must be reckoned from the date of sale and this would necessarily imply the sales that had taken place in 2011. However, counter claim was made only on 31.10.2015 which is well beyond the period of limitation.
5/8
A.S.(MD)No.206 of 2020
d) Even if Section 22 of the Hindu Succession Act, is considered as applicable, then it will apply only to Class-I heirs which implies Class-I heirs succeed to the estate under an intestate succession and not to those who are heirs of any such heirs. Turning to the facts of the present case, Class-I heirs contemplated are the three brothers who were jointly obtained the suit property under Ex.A11 decree and not their heirs. Again it is available only when the property devolve on them in an intestate succession and not under a decree of partition.
6. The approach of the trial Court is apparently faulty. Sections 4 and 5 of the Partition Act will come to play only during a final decree proceedings, when the Court finds that the property is indivisible. In the present case, the property indeed is divisible, since it is a plot measuring 15,554 sq.ft and the plaintiff had purchased all but undivided 824 sq.ft belonging to the cross objector.
7. Turning to the case of the defendant seeking a right of pre-emption, it is liable to fail on two grounds: (a) That it is terribly barred by limitation in terms of Article 97 of the Limitation Act; and (b) That it only creates a preference in seeking aright, but does not vest any absolute right. It is because it creates a preferential right, it is considered of a weak right.
6/8
A.S.(MD)No.206 of 2020
8. In conclusion, this appeal is allowed and the judgment and decree dated 12.06.2020
in O.S.NO.37 of 2015 and counter claim in I.A.No.37 of 2015 on the file of the learned Additional District and Sessions Court, Sivagangai is set aside. No costs. Consequently, connected miscellaneous petition is closed.
(N.S.S., J.) (P.V.M., J.) 02.08.2024 Index : Yes / No Neutral Citation : Yes / No PM
To, 1.The Additional District and Sessions Judge, Sivagangai.
7/8
A.S.(MD)No.206 of 2020
N. SESHASAYEE, J. and P.VADAMALAI, J.
CM
A.S.(MD) No.206 of 2020 and C.M.P(MD)No.7257 of 2020
02.08.2024
8/8
3 issues framed by the court
Whether the defendant's counter claim for pre-emption is barred by limitation under Article 97 of the Limitation Act?
Whether the trial Court's application of Sections 4 and 5 of the Partition Act was tenable?
Whether the defendant has a substantial right of pre-emption against the plaintiff's purchases of co-sharers' shares?
4 provisions across 4 enactments
S.M.Venkatachalam
Valli
N.Seshasayee
P.Vadamalai
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
