CRP/2117/2018 of KRISHNAMOORTHY Vs MANGAMMAL on 2 September 2026

COMMON ORDER

CRP.No.2117 of 2018 has been filed, challenging the order in I.A.No.638 of 2017 in I.A.No.315 of 2012 in O.S.No.5 of 2009 on the file of the District Munsif Court, Palakode, in and by which, the application for amendment of the preliminary decree has been dismissed.

2. CRP.No.717 of 2026 has been filed, challenging the order in I.A.No.3 of 2023 in O.S.No.5 of 2009 on the file of the District Munsif Court, Palakode, in and whereby, the Trial Court has dismissed the application filed by the petitioner herein, 8th defendant in the suit, seeking to modify the preliminary decree or alternatively pass a fresh preliminary decree.

3. I have heard Mr.V.Raghavachari, learned Senior Counsel for Mrs.V.Srimathi, learned counsel for the revision petitioner in both the revision petitions and Mr.Venkateswaran, learned counsel for the 1st respondent in both the revision petitions and Mr.M.Ravi, learned counsel for the 4th respondent in CRP.No.717 of 2026.

4. Mr.V.Raghavachari, learned Senior Counsel, at the outset, would state that the 1st respondent had instituted the suit for partition, despite the fact that there was a registered partition deed even in the year 2002 and suppressing the same, as well as the factum of sale having been effected to third parties who are also put in possession. The learned Senior Counsel would further state that as on date, the registered sale deeds have not been challenged and purchasers have also not been impleaded and though legitimate attempts were made to challenge the decree passed by the Trial Court, granting preliminary decree, there was a delay in preferring the first appeal and the same is pending.

5. The learned Senior Counsel would further state that the Advocate Commissioner, without even visiting the property, has filed a report and has not even recorded and brought to the notice of the Court that a School is being run by the 14th defendant in a portion of the suit property. He would further state that even the registered partition deed of the year 2002 has not been challenged and all sales were to the knowledge of the plaintiff and despite the same, the plaintiff filed the suit, without impleading any of the subsequent purchasers, who were also in possession, even on the date of institution of the suit. It is therefore the submission of the learned Senior Counsel, Mr.V.Raghavachari, that merely because a final decree has been passed, it will not prevent the Court from passing a fresh preliminary decree or modifying the preliminary decree already passed. In this regard, the learned Senior Counsel relies on the decision of this Court in Jude Prathap Vs. Bavani Rani and others, reported in 2024 SCC Online Mad 12263.

6. Per contra, Mr.Venkateswaran, learned counsel for the contesting 1st respondent would submit that the revision petitioner has been in the habit of protracting the proceedings and going all out to ensure that the plaintiff does not enjoy the fruits of the decree obtained in the suit for partition. He would further state that though it has been contended by the learned Senior Counsel that the preliminary decree has already been challenged, till date, first appeal has not even been numbered and admittedly, there is no order of interim stay granted by any Appellate Court and in such circumstances, the Trial Court has rightly dismissed the applications filed by the revision petitioner. He would also bring to my notice that the final decree itself has been passed and the petitioner has been put in possession of her lawful entitlement and therefore, nothing survives for consideration in these revision petitions. He would also place reliance on the order of this Court in Aburvakounder (Died) and others Vs. Balamurugan and another in CRP.No.385 of 2024 dated 03.01.2025.

7. I have carefully considered the submissions advanced by the learned Senior Counsel for the revision petitioner and the learned counsel for the 1st respondent.

8. CRP.No.2117 of 2018 has been filed, challenging the dismissal of I.A.No.638 of 2017, in and by which, the petitioner sought to implead third party purchasers. The Trial Court has dismissed the said application, finding that the petitioner had not even disclosed the identity of the purchasers, details of the purchases made by them or specific items of properties or portions thereof, which have been alienated, even in the application. The Trial Court also found that insofar as the purchasers who have entered the fray pending the final decree proceedings, they cannot be given an audience and hence, dismissed the application. The petitioner also filed I.A.No.3 of 2023, seeking modification of the preliminary decree or alternatively pass a fresh preliminary decree in his favour, contending that after the amendment to the Hindu Succession Act, the 1st defendant died and the share of the plaintiff was enlarged to 1/8th.

9. The case of the revision petitioner is that after a registered partition deed between the defendants 1, 5, 7 and 8 on 03.01.2002, and even before the final decree was passed, the defendants have sold their separate shares to various subsequent purchasers who built houses and also set up a School under the name and style of “Sharon High School” and all these material facts were suppressed while filing the final decree application. It is also brought to my notice that the plaintiff has also filed a suit in O.S.No.7 of 2014, challenging the subsequent sale deeds as null and void and the said suit has been renumbered as O.S.No.27 of 2023 and the same is pending before the District Munsif cum Judicial Magistrate, Karimangalam.

10. The said application was resisted by the 1st respondent/plaintiff, contending that succession opened only on the demise of the father in the year 1984, at which time, the plaintiff was unmarried and therefore, applying Section 29A of the Tamil Nadu Amendment Act 1 of 1990, the 1st respondent becomes a coparcerner by birth and therefore, she is not bound by the partition deed entered into on 03.01.2002.

11. The bone of contention of the petitioner/8th defendant is that there has been a partition in the family amongst the defendants 1, 5, 7 and 8 even on 03.01.2002 and the same has not been challenged till date. However, the fact that the 1st respondent/plaintiff was not married on the date of coming into force of Section 29A of the Act is not disputed by the petitioner. In such circumstances, the partition, behind the back of the 1st respondent, will certainly not bind the 1st respondent. The preliminary decree was passed way back on 22.12.2011 and thereafter, final decree application has also been filed and today, admittedly, the final decree application has also been allowed and the 1st respondent has been put in possession of her entitlement. The objection of the petitioner/8th defendant is with regard to the interest of third party buyers.

12. Curiously, none of the third party purchasers are before the Court, seeking to implead themselves or questioning the preliminary and final decree granted in favour of the 1st respondent. If at all the petitioner was aggrieved by the preliminary decree, declaring the rights of the 1st respondent, then the only remedy open to the petitioner was to challenge the preliminary decree in the manner known to law. Admittedly, till date, the petitioner is not even able to number the first appeal, despite passage of more than a decade. In such circumstances, it was not open for the petitioner to seek for modification of the preliminary decree or for a fresh preliminary decree to be passed in a suit filed by the 1st respondent.

13. As regards the contention that the subsequent purchasers have constructed houses and one of them is also running a School (14th defendant), none of these purchasers have approached this Court putting forth their objections or grievances. In such circumstances, I do not see how the petitioner can canvass the grievances of other third parties by taking out such applications. In fact, this Court, in Aburvakounder’s case, held that partition suit is fully and final decided and a final decree has been passed and the issue cannot be reopened thereafter.

14. Though Mr.V.Raghavachari, learned Senior Counsel has relied on the decision of this Court in Jude Prathap Vs. Bavani Rani in CRP.(MD).No.307 of 2019 dated 10.07.2024, that was a case where a third party to the suit challenged the dismissal of his application to implead himself as a party defendant, this Court has held that when a revision petition as against the dismissal of an impleading application is pending and the Trial Court proceeded to pass a preliminary decree, relying on the decision of the Hon’ble Supreme Court in Dhanalakshmi and others Vs. P.Mohan and others, reported in 2007 (3) CTC 332, this Court held that if the impleading application by a pendente lite purchaser in a partition suit is allowed, then mere passing of a preliminary decree will not stand in the way. However, in the present case, it is not just a preliminary decree, but final decree has also been passed admittedly and the 1st respondent has been put in possession of her entitlement in terms of the preliminary decree, which has also become final as on date. In such view of the matter, I do not find any grounds to interfere with the orders of the Trial Court, especially under Article 227 of the Constitution of India.

15. In fine, these Civil Revision Petitions are dismissed. No costs. Connected Civil Miscellaneous Petitions, if any, are closed. 02.09.2026 Neutral Citation Case : Yes / No Speaking / Non-speaking order Index : Yes/No ata

P.B.BALAJI.

J, ata To The District Munsif cum Judicial Magistrate, Palacode, Dharmapuri. Pre-delivery order made in CRP.Nos.2117 of 2018 & 717 of 2026 02.09.2026