CMA/198/1997 of V MUNUSAMY Vs M SUGUNA on 31 December 2004

JUDGEMENT

(Judgement of the Court was delivered by P. Sathasivam,J.)

The above Civil Miscellaneous Appeal has beendirected against the order of the II Additional Judge, CityCivil Court, Madras dated 30-4-1992 made in A.S.No.393/89wherein the learned Judge remanded the suit to the trial Court(III Assistant Judge, City Civil Court, Madras) for freshdisposal in conformity with Section 4 (1) of the Partition Act.First defendant in I.A.No.9105/81 on the file of 3rd AssistantJudge, City Civil Court, Madras is the appellant in the aboveappeal. The respondent herein/plaintiff filed the said suit forpartition. The suit property is a building bearing Door No.70/1, New No.13 in Sundaraja Perumal Koil street, Peravellore,Madras-82, originally belonged to one Athiammal. She executed asettlement deed on 19-2-1951 in respect of the said property infavour of defendants 1 and 2 who are brothers. They wereresiding in a portion of the suit building and had let out theremaining portions to defendants 3 to 9. The first defendanthas not amenable to give due share to the 2[nd] defendant in thesuit property; accordingly, the 2[nd] defendant went out of thesame and to live in his wife's house. The second defendantoffered to sell his half share in the suit property to theplaintiff, who agreed to purchase the same. Accordingly, theshare of the 2[nd] defendant was conveyed by him on 22-5-81 infavour of the plaintiff for a consideration of Rs.20,000/-.After purchase, the plaintiff issued lawyer's notice to thefirst defendant calling upon him to effect partition of the suitproperty in to two half shares. Since the same was not accededto, the plaintiff filed the said suit.

2. The suit was resisted by the first defendantby filing written statement. Ultimately, by judgement anddecree dated 25-3-83, a preliminary decree was passed forpartition and separate possession of half share in the propertyin favour of the plaintiff.

3. After the preliminary decree, the firstdefendant filed I.A.No.7745/87 under Section 4 (1) of thePartition Act before the 6[th] Assistant Judge, City Civil Court,Madras to ascertain the value of the share of the plaintiff inrespect of the dwelling house of the petitioner therein/1stdwefendant situated at No.13, Sundararaja Perumal Koil streetwhich is the subject matter of the partition suit in O.S.No.9105 of 81. The said application was contested by therespondent therein/plaintiff by filing counter statement.Learned III Assistant Judge, City Civil Court, Madras, afterconsidering the rival contentions, ultimately allowed theapplication filed under Section 4 (1) of the Partition Act.

Questioning the same, the respondent therein/plaintiff filed anappeal in A.S.No. 393/89 before the II Additional Judge, CityCivil Court, Madras. The appellate Judge allowed the appeal,set aside the decree and judgement of the trial Court andremitted the matter back to the trial Court for fresh disposalaccording to law and in conformity with Section 4 (1) of thePartition Act. Questioning the said order of remand, the firstdefendant/appellant herein has preferred the present appeal.Pending disposal of the appeal, the sole appellant died and inhis place his legal heirs, namely, appellants 2 to 5 werebrought on record as per the order dated 1-12-2004 made inC.M.P.No. 13259 of 2004.

4. Heard Mr. T.R. Mani, learned senior counsel forthe appellants and Mr. G. Ravishankar, learned counsel for therespondent.

5. The only point for consideration in this appealis, whether the appellate Court is justified in remanding thematter to the trial Court for fresh disposal?

6. There is no dispute that the preliminarydecree dated 25-3-83, granting half share in the suit house infavour of the plaintiff and the first defendant has becomefinal, since no appeal has been filed against the same.Inasmuch as the plaintiff being a third party who purchased theshare of the second defendant who is none-else than the brotherof the first defendant, the other sharer, namely, firstdefendant filed a petition under Section 4 (1) of the PartitionAct, 1893 (in short "the Act"). The said provision reads asunder:- "Section 4. Partition suit by transferee of share indwelling-house.- (1) Where a share of a dwelling-house belongingto an undivided family has been transferred to a person who isnot a member of such family and such transferee sues forpartition, the court shall, if any member of the family being ashareholder shall undertake to buy the share of such transferee,make a valuation of such share in such manner as it thinks fitand direct the sale of such share to such shareholder, and maygive all necessary and proper directions in that behalf.

Section 4 (1) of the Partition Act involves the followingaspects:

i) The property shall be a dwelling house; ii) It shall remain as an undivided family property; iii) The member of such undivided family should have sold his share of the dwelling house to a transferee such a transferee should be a third party;

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v) There shall be an undertaking by the other shareholder to undertake to buy the share purchased by such a transferee in terms of Section 4(1) of the Partition Act;

vi) Thereupon the Court shall direct the sale of such share by the transferee to such a share- holder.

7. Based on the averment in the affidavit filedin support of I.A.No.7745/87, filed under Section 4 (1) of theAct, the trial Court, after satisfying itself, gave a findingthat the petitioner therein/appellant herein is entitled topurchase the suit property. Such finding satisfies one of theconditions prescribed under Section 4 (1) of the Act. No doubt,the trial Court has not arrived the value of the share purchasedby the transferee i.e., plaintiff. However, as rightly pointedout by the learned senior counsel for the appellant, on thisground the lower appellate court set aside the order of thetrial Court, including the finding of the entitlement of theappellant to purchase undivided share alienated by the familymember to stranger alienee. As rightly argued, the principlesunderlying the exercise of the power of remand by the appellatecourt has not been properly applied or exercised by the lowerappellate court. Courts have held that only in exceptionalcases where the judgement of the trial court is wholly un-intelligible or incomprehensible the appellate court can remandthe matter for fresh disposal. Order 41, Rule 23 give amplepower to the lower appellate court to decide all issues,including appointment of a commission for local inspection,secure finding from the trial Court. Even if certain mistakescrept in in the order of the trial court, the same can berectified by the appellate court itself, unless there are verycompelling circumstances to make an order of remand. An order ofremand should not be taken to be matter of course and the powerof remand should be sparingly exercised. There should be alwaysendeavour to dispose of the case by the appellate court itself,when the commissions and omissions made by the first Court couldbe corrected by the appellate Court. In the case on hand, evenif there is omission by the trial Court regarding determinationof the value of the share purchased by the plaintiff, in thelight of the above discussion coupled with the mandate providedunder Order 41, Rule 23 and 27, the appellate court itself canascertain the value either by appointment of a Commissioner orby getting a report from the trial Court. As said earlier,Section 4 (1) of the Act gives option to any member of thefamily who is a co-sharer in respect of a dwelling house, aportion whereof has been transferred to a person who is not amember of such family, to purchase the share of such transfereeif a suit for partition is filed by that transferee. On such option being exercised, the valuation of such share has to bedetermined. The crucial date for the purpose of fixing thevaluation of the share of such transferee is the date whenoption to purchase in accordance with Section 4 of the Act isexercised by the defendant-co-sharer.

8. In the light of our discussion, we are of the viewthat the lower Appellate Court committed an error in remandingthe matter to the trial Court; accordingly we set aside thejudgement dated 30-4-1992 in A.S.No. 393 of 1989 and restore theappeal on its file. The II Additional Judge, City Civil Court,Madras is directed to dispose of the appeal on merits asindicated above, after affording opportunity to both parties.Since the I.A. under Section 4 (1) of the Act is pending from1987, the lower Appellate Court is directed to dispose of thematter within a period of four months from the date of receiptof a copy of this order. Civil Miscellaneous Appeal is allowed.No costs.

This Appeal having been posted on this day [i.e]04.3.2005 for “Being Mentioned” in pursuance to the order ofthis court dated 31.12.2004 and made in CMA.No.198 of 1997 inthe presence of the aforesaid Advocates the court made thefollowing Order:

At the instance of the learned counsel for therespondent, the above appeal is posted today for “BeingMentioned”.

2. After hearing the learned counsel on either side,we are of the view that no further clarification is required,more particularly with reference to the observation made in para7 of our order, in view of the fact that we have already said inpara 8 that it is for the court below to dispose of the appealon merits.

/true copy/

Sub Asst.Registrar

To:-

1. The Registrar, City Civil Court, Madras City Civil Court, Madras DATED: 31.12.2004 / 04.3.2005

CMA.No.198 of 1997PV [co]KK/15.3.2005