(Prayer: The Second Appeal filed under Section 100 of the Code of Civil Procedure, against the Judgment and Decree dated 04.04.1997 made in A.S.No.223 of 1992, on the file of the Principal Subordinate Judges Court, Coimbatore remanding the Judgment and decree dated 09.04.1992 made in I.A.No.321 of 1997 in O.S.No.1860 of 1967 on the file of the III Additional District Munsif Court at Coimbatore.)
1. Even though, three Second Appeals have been put up for consideration before this Court, let me address the issues in S.A.No.19 of 2000 separately.
2. This Second Appeal, emanates from an Interlocutory Order in I.A.No.321 of 1977, which had been filed in O.S.No.1860 of 1967.
3. Questioning the order in I.A.No.321 of 1977, A.S.No.223 of 1992 had been filed and thereafter, the present Second Appeal had been filed.
4. The above narration would raise a doubt whether the Second Appeal should have been filed or a Civil Miscellaneous Second Appeal should have been filed. The office had also raised that particular objection.
5. The learned counsel for the appellants however answered the objection, by placing reliance on a Judgment of a learned Single Judge reported in 1998 (2) CTC 218 [R.Maria Siluvai vs. M/s.B.Sri Kumariammal and three others], wherein the learned Single Judge had examined the provisions under Sections 96 & 100 of CPC and also Order 41 Rule 23 CPC and observed that an appeal is a creature of statute. It had been further stated that the ultimate test was whether there was a final decision on any particular point against the party and if there is one and if he is the losing side, then, that particular order should be treated as an appealable decree and an appeal would lie.
6. Let me go little deeper in to the facts. It must also be noted that at the time of admission, notice of motion alone had been directed in this Second Appeal and it was directed to be listed along with S.A.Nos.1473 & 1474 of 1999.
7. The appellant herein was the 13th respondent in I.A.No.321 of 1977 in O.S.No.1860 of 1967 which was on the file of the III Additional District Munsif Court at Coimbatore. That particular Interlocutory Application had been filed under Order 20 Rule 12 & 18 of CPC and also under Order 26 Rule 13 & 14 of CPC to pass final decree after appointment of an Advocate Commissioner.
8. It had been stated that the 1st petitioner in the said application was the 5th defendant in the suit and the 2nd and 3rd petitioners were 6th and 7th defendants in the suit. The plaintiffs in the suit were the 6th to 11th respondents. The suit was filed by Ayyaswamy Naicker, seeking partition and separate possession. A preliminary decree was passed on 12.12.1969. The 12th respondent had filed I.A.No.306 of 1970 seeking execution. The property was brought on sale. The 1st petitioner had filed a Claim Petition stating that she was entitled to an undivided 1/5th share. It was stated that the sale would not bind the 2nd and 3rd plaintiffs in the suit. It was therefore stated that the petitioners should be granted an undivided 3/5th share in and out of the sale proceeds or in the suit property.
9. The present appellant/13th respondent had alone contested the application. He stated that in accordance with the order of auction by the Court in I.A.No.306 of 1970 in O.S.No.2144 of 1969, he had purchased the property. According to him, the property originally belonged to Ayyaswamy Naicker, and the 1st - 11th respondents were the legal representatives of Ayyaswamy Naicker, and the 7th - 10th respondents, were the children of the 1st respondent. The 6th respondent was the wife of the 1st respondent. The 7th - 10th respondents had filed a suit for partition in O.S.No.1860 of 1967. The present appellant/13th respondent claimed that his purchase will have to be recognized.
10. It had been stated that the respondents had obtained a preliminary decree without notice to the appellant/auction purchaser. He also claimed that he had renovated that particular property. He also stated that in E.P.No.306/1970, the 1st - 3rd petitioners therein had claimed only an undivided share of only 1/5th share of the said property. He therefore claimed that he was entitled to the remainder 4/5th share in the property.
11. An order was passed by the III Additional District Munsif at Coimbatore on 09.04.1993, holding that the petitioners were entitled to only 1/5th share and not 3/5th share as claimed by them. The claim of the appellants herein for an undivided 4/5th share was upheld and confirmed in I.A.No.321 of 1977 in O.S.No.1860 of 1967 by the aforementioned order.
12. Thereafter, the petitioners therein filed A.S.No.223 of 1992 which came up for consideration before the Principal Sub Court at Coimbatore. The 4th - 10th respondents also filed A.S.No.165 of 1992 and the petitioners in the said Interlocutory Application filed A.S.No.223 of 1992 and the 5th - 7th respondents had filed A.S.No.59 of 1993.
13. All the three appeals were taken up together for consideration. The points which had to be considered were whether the petitioners in the Interlocutory Applications were entitled to an undivided 1/5th share or an undivided 3/5th share. There was also a play on the share of the appellant herein who claimed to be the auction purchaser. If the petitioners in the Interlocutory Applications were deemed to have an undivided 1/5th share then the remaining 4/5th share would go to the share of the appellant herein. If the petitioners in the Interlocutory Applications were deemed to have an undivided 3/5th share, then the appellant herein would be entitled to the remaining 2/5th share.
14. That property had been mortgaged by the other respondents. They stood ousted from any share in the property. It had come to be sold in auction and was purchased by the appellants herein.
15. The I Appellate Court framed only one point for consideration namely whether the appeal should be allowed or not?
16. It had been found as a fact that the 1st defendant Lakshmiammal had filed a Claim Petition on behalf of herself and on behalf of the 2nd and 3rd defendants. She claimed that she was entitled to an undivided 1/5th share. This evidence was considered by the I Appellate Court who found the fault that during cross examination she only affirmed that she is entitled to 1/5th share but that contention was not accepted.
17. It is stated that the shares of the parties have not been properly adjudicated by the III Additional District Munsif at Coimbatore. The appeal in A.S.No.165 of 1992 was allowed. As stated, the appellant had filed the present Second Appeal, questioning the said Judgment of the I Appellate Court.
18. The only point which had been stressed is that there was an admission in the Claim Petition in E.P.No.306 of 1970 that the respondents herein were entitled to an undivided 1/5th share and thereafter, the shares have been re-worked. It is claimed that it was done in the absence of the appellants herein. It was stated an application was filed in I.A.No.1574 of 1975, and without impleading the appellants herein, the preliminary decree was re-adjudicated from the share of the petitioners in I.A.No.321 of 1971 increasing the 1/5th share to 3/5th undivided share.
19. This was correctly rejected by the III Additional District Munsif at Coimbatore, but the order was interfered by the I Appellate Court. Though notice of motion had been ordered, I would remand the appeal back to the I Appellate Court/Principal Sub Court at Coimbatore for fresh consideration of the preliminary decree granted in O.S.No.1860 of 1967.
20. The Principal Sub Judge, Coimbatore is directed to reexamine the entire issues surrounding the preliminary decree once again particularly the purchase of the property by the appellant on a mortgage suit.
21. In Ganduri Koteshwaramma and another vs. Chakiri Yanadi and another reported in (2011) 9 SCC 788, the Hon'ble Supreme Court held as follows:
“17. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e., after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the Court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation. We are fortified in our view by a 3-Judge Bench decision of this Court in the case of Phoolchand and Anr. vs. Gopal Lal 1 wherein this Court stated as follows:
“We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if 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. ...... So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the Court can and should do so; ..... there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. ... for it must not be forgotten that the suit is not over till the final decree is passed and the Court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. ... a second preliminary
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decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree... .”” 22. A further preliminary decree can always be granted. Therefore, before adjudicating the final rights of the parties it would be advisable that the Principal Sub Judge, Coimbatore applies his/her mind as to who are the actual sharers of the properties. Let that exercise be done in manner known to law. 23. The Principal Sub Judge, Coimbatore may endeavor to dispose of the case and pass a preliminary decree in accordance with law within a period of six months from the date of receiving the records from this Court and on appearance of the parties. 24. The present Second Appeal is therefore allowed. There shall be no order as to costs. The appeal is remanded back to the I Appellate Court/Principal Sub Court, Coimbatore for fresh consideration of the preliminary decree granted in O.S.No.1860 of 1967 in A.S.No.223 of 1992 dated 04.04.1997.