CMA(MD)/421/2026 of C. Chidambaram Vs C.Meenakshisundaram on 2 November 2026

J U D G M E N T

The appellants, who are the first defendant and the legal heirs of the second defendant, have filed the present Civil Miscellaneous Appeal, challenging the judgment and decree passed in A.S.No.35 of 2012 on the file of the learned Principal District Judge, Sivagangai, dated 28.04.2025, whereby the learned Appellate Judge allowed the appeal preferred against the dismissal of I.A.No.54 of 2008 in O.S.No.155 of 2003.

2. Facts of the case:

2.1. The first respondent herein filed the suit in O.S.No.155 of 2003 seeking partition of the suit schedule properties. After contest, the suit was decreed, declaring that the plaintiff was entitled to a 1/4 share in the suit schedule properties. Taking into consideration the special circumstances, the preliminary decree further directed that, in lieu of the house property mentioned in the suit schedule, the plaintiff should be allotted an equivalent extent of property from the other suit properties.

2.2. Thereafter, a final decree application was filed, in which an Advocate Commissioner was appointed to inspect, measure and allot the properties by metes and bounds. Based on the Commissioner's report, a final decree was passed in

C.M.A.(MD).No.421 of 2026 I.A.No.54 of 2008. The final decree was thereafter acted upon; the properties were registered and possession was handed over to the respective parties. Some of the parties also alienated the properties allotted to them.

2.3. Subsequently, the first respondent/plaintiff filed I.A.No.54 of 2008 seeking allotment of his legitimate share in the vacant land situated adjacent to the house property, contending that the said vacant land had not been taken into consideration while passing the final decree. The said application was dismissed by the trial Court. Aggrieved thereby, the first respondent preferred A.S.No.35 of 2022 before the learned Principal District Judge, Sivagangai.

2.4. The learned Appellate Judge allowed the appeal, holding that the plaintiff was entitled to an equal share in the vacant site also, which had not been properly considered by the Advocate Commissioner while effecting the division pursuant to the preliminary decree. Aggrieved by the said judgment, the first defendant and the legal heirs of the second defendant have preferred the present appeal.

3. Submissions of the learned counsel appearing for the appellants:

3.1. The learned counsel appearing for the appellants submitted that the preliminary decree had attained finality, as no challenge was made thereto. Thereafter, during the final decree proceedings, an Advocate Commissioner was

C.M.A.(MD).No.421 of 2026 appointed, who inspected and measured the properties and allotted the respective shares to the parties. The parties accepted the Commissioner's report, pursuant to which the final decree was passed. Therefore, according to the learned counsel, the plaintiff cannot now seek a fresh division of the properties, particularly when no objection had been raised to the Commissioner's report at the relevant point of time. Such a course would also amount to permitting the plaintiff to approbate and reprobate. In support of his contention, the learned counsel relied upon the judgments in the case of Krishna Reddiar vs Ramanuja Reddiar reported in AIR 1929 Madras 492 and 1930 Law Weekly 30.

3.2. The learned counsel further submitted that, after accepting the Commissioner's report and allowing the final decree to be passed, the plaintiff cannot seek to reopen the final decree proceedings. It was also contended that the learned Appellate Judge, without jurisdiction, ought not to have remitted the matter to the trial Court for passing a further final decree in respect of the vacant land situated adjacent to the house property.

4. Submissions of the learned counsel appearing for the respondents:

4.1. Per contra, the learned counsel appearing for the first respondent/plaintiff submitted that, on a proper reading of the preliminary decree and the judgment, it is clear that only the house property measuring 425 sq.ft. was taken into consideration for the purpose of compensation. The adjacent vacant land was

C.M.A.(MD).No.421 of 2026 neither divided nor compensated under the preliminary decree. Therefore, the plaintiff's legitimate share in the said vacant land still remains to be worked out.

4.2. The learned counsel further submitted that the final decree Court is not bound to mechanically accept the Commissioner's report and is required to independently consider the allotment of the properties by metes and bounds in accordance with the preliminary decree. Therefore, the learned Appellate Judge was justified in directing the trial Court to consider the plaintiff's claim in respect of the vacant land.

5. This Court has considered the rival submissions and perused the materials available on record as well as the judgments relied upon by the learned counsel appearing for the respective parties.

6. The following point arises for consideration:

6.1. Whether the learned Appellate Judge was justified in remitting the matter to the trial Court for considering the plaintiff's claim in respect of the vacant land situated adjacent to the house property mentioned in the suit schedule?

7. Discussion and findings:

7.1. To appreciate the said issue, it is necessary to extract the relevant findings contained in the judgment in O.S.No.155 of 2003 on the file of the Sub

C.M.A.(MD).No.421 of 2026 Court, Devakottai, by which the preliminary decree was passed, the operative portion of the preliminary decree reads as follows:

1. thjpf;F gpuhjpy ; NfhupAs;sgb jhth nrhj;jpy; ¼ ghfk ; toq;fp Kjy ; epiy jPh;g;ghiz gpwg;gpf;fg;gLfpwJ.

2. jhth tPl;by; thjpf;Fwpa gFjpf;F <lhf NtW nrhj;Jf;fspy ; thjpf;F xJf;fpl Ntz;Lk; vd;gjhfTk; cj;jutplg;gLfpd;wd. A Scheduled nkhj;j kjpg;G Ughapy; thjpapd ; 4y ; xU ghfj;jpw;F

kjpg;G (Ughapy;)

1. nghJtPL vd;W miof;fg;gLk ; fhiuf;Fb lTd; Myq;Fbahh; tPjp fjtpyf;fk;nghJ tPL vd;W miof;fg;gLk;. fhiuf;Fb lTd ; Myq;Fbahh; tPjpapy; fjT ,yf;fk ; 1 thp tpjpg;G vz;.29793 Xl;LtPL (gioa fjT ,yf;fk; 193/1) XU yl;rk; 25.000

2. Nkw;gb tPl;il xl;ba fhyp kidaplk; Rkhh; 8 nrz;bd; nkhj;j kjpg;G 3 yl;rk; 75.000

3. fhiuf;Fb Rg;gpukzpaGuk ; 4tJ tPjp tlf;F tp];jug;gpy; b.v];.vz;.511/gp fhypkidaplj;jpy; nkhj;j t]jPuzk; 21 nrd;l; 4 yl;rk; 100000 8 yl;rk; 200000

7.2. On a careful reading of the aforesaid documents, it is evident that the preliminary decree specifically dealt with the house property measuring 425 sq.ft. The judgment makes specific reference to the house property and directs that, in lieu of the said house property, the plaintiff should be allotted an equivalent extent of other property. However, there is no reference in the preliminary decree to the vacant land situated adjacent to the said house property, nor is there any indication that the plaintiff's share in the said vacant land was either allotted or compensated in any manner.

7.3. Therefore, the vacant land forming part of the suit schedule properties remained undivided. Merely because the Advocate Commissioner, during the earlier final decree proceedings, did not include the said vacant land in the allotment, the

C.M.A.(MD).No.421 of 2026 plaintiff cannot be deprived of his substantive right declared under the preliminary decree. The final decree must necessarily conform to the preliminary decree and must determine the rights declared therein.

7.4. The contention of the learned counsel for the appellants that the plaintiff is precluded from seeking his share on the principle of approbate and reprobate cannot be accepted in the facts of the present case. The plaintiff is not seeking to challenge or reopen the rights already settled under the final decree. He is only seeking allotment of his legitimate share in a portion of the suit schedule property which, admittedly, was not dealt with under the preliminary decree or the final decree.

7.5. The judgments relied upon by the learned counsel for the appellants, including the decision reported in AIR 1929 Madras 492, do not advance their case. In the said decision, the factual and legal circumstances were different. In the present case, the preliminary decree itself contains no adjudication or allotment concerning the vacant land in question. Therefore, the said decision has no application.

7.6. Likewise, the decision reported in 1930 Law Weekly 30, relied upon by the appellants on the principle of approbate and reprobate, is also not applicable. There is no inconsistent stand on the part of the plaintiff. The plaintiff is merely seeking to work out the share declared in his favour under the preliminary decree in respect of the property which was not divided earlier.

C.M.A.(MD).No.421 of 2026

7.7. In such circumstances, this Court finds that the learned Appellate Judge was justified in holding that the plaintiff is entitled to seek allotment of his share in the vacant land and in remitting the matter to the trial Court for the purpose of effecting such allotment in accordance with the preliminary decree.

7.8. Hence, this Court finds no merit in the contentions raised by the learned counsel appearing for the appellants. The judgment and decree passed by the learned Principal District Judge, Sivagangai, do not warrant interference.

8. Result:

8.1. Accordingly, the Civil Miscellaneous Appeal is dismissed. The judgment and decree passed in A.S.No.35 of 2022, dated 28.04.2025, are confirmed. Considering the relationship between the parties, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.

02.11.2026 NCC :Yes/No Index :Yes/No Internet :Yes/No sbn

C.M.A.(MD).No.421 of 2026 To

1. The Principal District Court, Sivagangai

2. The Sub Court, Devakottai.

3. The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

C.M.A.(MD).No.421 of 2026 K.K.RAMAKRISHNAN,J. sbn C.M.A.(MD).No.421 of 2026 and C.M.P.(MD).No.4027 of 2026 Dated: 02 .11.2026