Madras High Court
C.Ravi vs Tmt.Solai on 30 June, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
A.S.(MDNo.65 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.06.2022
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
A.S. (MD) No.65 of 2020
and
C.M.P(MD)Nos.2374 & 2375 of 2020
and
C.M.P(MD)No.2912 of 2022
1.C.Ravi
2.Solai Nagappan ... Appellants/Defendants
Vs.
Tmt.Solai ... Respondent/Plaintiff
PRAYER: Appeal Suit filed under Section 96 of the Civil Procedure Code,
to set aside the judgment and decree, dated 18.09.2019, passed in O.S.No.13
of 2014, on the file of the Principal District Judge, Pudukkottai.
For Appellants : Mr.E.J.Ayyappan
For Respondent : Mr.N.Balakrishnan
_________
Page 1 of 29
https://www.mhc.tn.gov.in/judis
A.S.(MDNo.65 of 2020
JUDGMENT
The appellants are the defendants in O.S.No.13 of 2014, on the file of the Principal District Judge, Pudukottai. The respondent is the plaintiff in the said suit. The respondent/plaintiff filed a suit against the appellants/defendants for partition. Even though, at the time of filing of the suit the second respondent was not a party to the suit, subsequently, he was impleaded as one of the defendant as per the order of the Court, dated 26.10.2017 in I.A.No.180 of 2017. Then, the trial Court after completion of the trial held that the plaintiff is entitled to get ½ share and preliminary decree was also passed to that effect. Challenging the said judgment and decree, the defendants therein filed the present appeal before this Court.
2. According to the case of the plaintiff, as per the plaint that the father of the plaintiff and the defendants namely R.M.Chockalingam Chettiyar purchased some of the suit properties out of the sale proceeds of the joint family properties and therefore, all the suit properties belongs to _________ Page 2 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 the joint family consisting of R.M.Chockalingam Chettiyar, plaintiff and the first defendant. The mother of the plaintiff namely Chinthamani Achi also died. R.M.Chockalingam Chettiyar, out of the joint family income and out of the sale proceeds of the joint family properties, purchased the properties in the name of his wife Chinthamani Achi for the benefit of the joint family. So, all the properties were jointly enjoyed without any partition.
(ii) R.M.Chockalingam Chettiyar died on 27.07.2013. So the plaintiff is entitled for 1/2 share in the suit properties. The plaintiff is residing in Bangalore with her family. The first defendant, being a Kartha of the joint family, without knowledge of the plaintiff, is trying to sell the properties. So the suit is laid for partition and separate possession of the suit properties with regard to 1/2 share of the plaintiffs. The second defendant was added as necessary party.
3. The first defendant resisted the suit by filing a written statement stating that the relationship is not disputed. But, the nature and character of the properties mentioned in the plaint are disputed. The plaintiff is living _________ Page 3 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 away in Bangalore for the past 34 years after her marriage. So, the question of joint family does not arise. Similarly, the first defendant also lived separately till their parents death. So, the first defendant was also not in joint family with the parents. With regard to the first item, it is admitted that it is an ancestral house. In that, grand-father of the first defendant had 1/4th share as per the partition deed, dated 05.01.1965. So, the defendants are only a coparcener along with others in that properties. As per the customary practice, ancestral house will devolve only on the male members. So, the plaintiff is not entitled for 1/2 share in the first item of the property. The grandfather effected the partition on 13.05.1965 retaining 1/24th share distributed other properties to other persons. So the plaintiff is not entitled for any share much less 1/2 share in the property. The suit is bad for non- jointer of necessary party for first item. There is no income from the property and is kept intact. Therefore other items are not ancestral property.
4. The defendants filed a additional statement and stated that On 26.12.2012, the plaintiff's parents settled some properties in favour of the _________ Page 4 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 second defendant who is the grand son and other properties in favour of the first defendant. After knowing about all these things the suit has been filed only after one year. It is denied that the parents of the plaintiff were not keeping their good health, it is also denied that the defendants obtained documents in his favour by forcing the parents.
5. On the basis of the above pleadings, the learned trial Judge framed the following issues for consideration:
(i) Whether the plaintiff and the defendant No.1 do not constitute joint family after the death of the parents?
(ii) Whether the suit properties are the joint family properties?
(iii) Whether the items Nos. 2 to 4 are the self acquired properties of the deceased Chockalingam Chettiar?
(iv) Whether the suit is barred for non-jointer of necessary parties?
(v) Whether the plaintiff is entitled for 1/2 share in the suit properties and for preliminary decree for partition?
(vi) To what other reliefs?
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6. In order to substantiate the case, on the side of the plaintiff two witnesses were examined as P.W.1 and P.W.2 and 2 documents were marked as Ex.A1 & Ex.A2. On the side of the defendants one witness was examined as D.W.1 and 6 documents were marked as Ex.B1 to Ex.B6.
7. After completing the trial and on hearing of arguments advanced on either side, the learned trial Judge, considered the evidence available on record, decreed the suit as stated above.
8. The learned counsel appearing for the appellants would submit that the trial Court failed to appreciate the legal position since the property which was allotted to their father through partition is not coparcener property and it became separate property of the father of the first appellant and the respondent/plaintiff. Further, he would submit that only the first item of the properties derived by the father of the respondent through her father by way of partition deed and there is no income from the ancestral property to purchase the other properties. Since in the first item of the _________ Page 6 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 property 1/24th was allotted to the father of the respondent and first appellant through partition, it lost its character of coparcener property or ancestral property or joint family property and it become a separate property of their father. Further he would submit that the father of the respondent and the first appellant was working in the Bank and he had separate income and he purchased the other properties in his name and also in the name of his wife, who was mother of the first appellant and the respondent. The father and mother settled some item of the property in favour of the first appellant and mother of the first appellant executed the settlement deeds in respect of one of the property which stands in the name of the mother and settled the other properties in favour of his son namely, the second appellant. Since it is a self acquired property of the father and mother of both appellant and the respondent and their father executed a sale in favour of the appellants, the respondent/plaintiff is not entitled to get any share.
9. Even in the partition deed, their father got ½ share in the 1/24th share. The respondent/plaintiff is not entitled to get share since she is not _________ Page 7 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 coparcener and it is not a joint family property. Even otherwise, she is only entitled to get her share on her father's share and therefore, the first item of the property has been wrongly mentioned and other sharers have not been added as party. Therefore, the suit is bad for non-joinder of necessary parties. The trial Court has failed to appreciate the legal position that once the property was divided and partitioned who got the share from the partition deed is empowered to deal with the property as his individual property. Once the property is partitioned under the partition deed and it lost his character either as coparcener property or the ancestral property or joint family property. Therefore, the legal position has been wrongly interpreted by the trial Court and also decreed the suit, it wants interference.
10. The learned counsel for the respondent/plaintiff would submit that admittedly the first item of the property is ancestral property. Her father got ½ share from the total share of 1/24th share by way of partition. On partition an ancestral property remains in the hand of a single person, it has _________ Page 8 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 to be treated as his separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property. But, if children are born subsequently, the alienation made before his birth cannot be question. But, the moment the children are born, the property becomes a coparcenary property and the children would acquire interest in that and becomes a coparcener. They have right by birth in the ancestral property.
11. The trial Court, has rightly appreciate the oral and documentary evidence and rightly interpreted the legal position, decreed the suit. Further, as far as the settlement deed is concerned, even though, the plaintiff has not proved the ancestral nucleus to purchase the other items as self acquired property of the father and mother and they said to have executed the settlement deed under Ex.B-4, but the said settlement deed has not been proved in the manner known to law by examining the one of the attestors. Since the settlement deed was not proved in the manner known to law, it will not bind the respondent. Once settlement deed is not proved in _________ Page 9 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 the manner known to law, the parents of first appellant and the respondent died intestate, both the first appellant and respondent are equally entitled to ½ share in the other items. Therefore, the trial Court found that though the first item is an ancestral property, the respondent has not proved that the items Nos.2 to 4 were purchased out of the income from ancestral property. Therefore, held that the other properties are self acquired properties. Since settlement has not been proved, she is entitled to the share and therefore, the trial Court has rightly decreed the suit and no grounds to interfere.
12. Heard the learned counsel appearing for the appellant, the learned counsel appearing for the respondents, perused the pleadings, issues framed by the trial Court and oral and documentary evidence adduced and produced by both parties.
13. Admittedly, the first item of the property covered under partition deed Ex.A1. Though there is a partition deed between the father of the appellants and his brother, they got share from their father. Once it is an _________ Page 10 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 ancestral property, they obtained share from partition. Till such time children are born, male hindu to whom property was allotted, will hold it absolutely as sole surviving coparcener. Therefore, in this case, the father of the first appellant though got the share from his brother and once the first appellant and the respondents born, they also become the coparcener, hence, each entitled to 1/3 share. Since the father died intestate, both the first appellant and the respondents are equally entitled 1/2 share.
14. The learned counsel for the appellant vehemently contended that once the ancestral properties divided by partition and it lost its character of ancestral property. It is a settled proposition of law that after the joint family properties are partitioned and allotted to each sharer, the same can be held to be the individual property of the sharer only till a son and/or daughter are born. Once a son and /or daughter are born, they will get a right and share over the property by birth. Therefore, in this case, specifically father of the first appellant and the respondent got a share from his brother through his father by way of partition under Ex.A1 and _________ Page 11 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 subsequently, the first appellant and the respondent born to him before their birth, their father did not deal with the property therefore, on the date of birth of the first appellant and the respondent, the property was in the hands of his father, after the birth of the first appellant, respondent they become the coparcener and they are entitled to equal share along with their father. Therefore, as far as the first item is concerned, the first appellant and the respondent equally entitled to ½ share from 1/24th share since their father died intestate.
15. As far as other items are concerned, though the respondent stated that the property was purchased out of ancestral nucleus, therefore, that also become ancestral property. Therefore, she is entitled to 1/2 share, since the father died intestate. So far as in this case, absolutely there is no evidence to show that other items purchased out of income from the first item of the property or any other ancestral nucleus. Therefore, the trial Court found that the other items are self acquired property of the father and mother of the first appellant and respondent. Though the first appellant _________ Page 12 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 claimed that his father had executed the settlement deed in favour of them and mother executed the settlement in favour of his son second appellant.
16. A reading of the evidence it shows that none of the witnesses were examined and proved. It is a settled proposition of law that the settlement deed must be attested by two attestors and if it is falls under the compulsory attested document, as per Section 68 of Indian Evidence Act, if the execution of settlement deed is denied it must be proved by examining at least one of the attestors. But in this case, none of the attestors have been examined and settlement deed has not been proved in the manner known to law and non-examination of the attestor is amounts to not proved in the manner known to law, but admittedly, in this case, respondent herein/plaintiff denied the execution of the settlement deed. Though, admitted fact need not be proved, whereas, the respondents strongly denied the execution of settlement deed, once the execution of the settlement deed itself is denied, it is the duty of the parties to prove the settlement deed in the manner known to law. Whereas, in this case, as already stated that the _________ Page 13 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 settlement deed has not been proved in the manner known to law, therefore, the appellants are not entitled to get any benefit through settlement deed. Therefore, the other items are belongs to the parents of the first appellant/respondent since the settlement not proved. It is seen that the parents died intestate therefore, both the first appellant and the respondent are entitled to equal share in the other items of the property. Therefore, in this case, the respondent/plaintiff has proved the case. As far as the character of the ancestral property is concerned, the learned counsel for the respondent has placed the reliance on the judgment in Rohit Chauhan vs. Surinder Singh & Ors reported in 2013 SAR (Civil) 785 and the relevant portions are extracted hereunder:-
"10. Now referring to the decision of this Court in the case of Bhanwar Singh (Supra) relied on by respondents, the same is clearly distinguishable. In the said case the issue was in relation to succession whereas in the present case we are concerned with the status of the plaintiff vis-a-vis his father who got property on partition of the ancestral property.
11. A person, who for the time being is the sole _________ Page 14 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 surviving coparcener as in the present case Gulab Singh was, before the birth of the plaintiff, was entitled to dispose of the coparcenary property as if it were his separate property. Gulab Singh, till the birth of plaintiff Rohit Chauhan, he was not competent to object to the alienation made by his father before he was born or begotten. But, in the present case, it is an admitted position that the property which defendant no.2 got on partition was an ancestral property and till the birth of the plaintiff he was sole surviving coparcener but the moment plaintiff was born, he got a share in the father's property and became a coparcener. As observed earlier, in view of the settled legal position, the property in the hands of defendant no.2 allotted to him in partition was a separate property till the birth of the plaintiff and, therefore, after his birth defendant no.2 could have alienated the property only as Karta for legal necessity. It is nobody's case that defendant no.2 executed the sale deeds and release deed as Karta for any legal necessity. Hence, the sale deeds and the release deed executed by Gulab Singh to the extent of entire coparcenary property are illegal, null and void. However, in respect of the property which would have fallen in the share of Gulab Singh at the time of execution of sale-deeds and release deed, the parties can work out their _________ Page 15 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 remedies in appropriate proceeding.
12. In view of what we have observed above, the view taken by the lower appellate court as affirmed by the High Court is erroneous in law."
17. He has also relied on the judgment of this Court in M.Krishnamoorthy vs. K.Pondeepankar reported in 2017(3) CTC 170 and this Court held that:-
"12. It is a common knowledge that Hindu Succession Act 1956 made certain changes in the matter of succession amongst Hindus. Section-4 of the said Act gave an overriding effect to the provisions of the Act as against any text, rule or interpretation of Hindu Law or any other custom or usage as part of that law, which was in force immediately before the commencement of this Act. Sub-Section-a of Section 4(1) reads as follows:
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which the provision is made in the Act.
_________ Page 16 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 (Emphasis supplied) Therefore, it is clear that overriding effect will be in respect of any matter, for which a provision has been made in the Hindu Succession Act 1956. Section-6 of the said Act deals with devolution of interest in the coparcener property. While Section-8 deals with the general rules of Succession. Therefore, it is clear that two different kinds of properties and different Modes of succession were prescribed under the Act itself. Section-6 of the Hindu Succession Act as it stood prior to the amendment by Act 39 of 2005, reads as follows:
"6. When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act : (Emphasis supplied) Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such a female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as- the case may be, under this Act and not by survivorship. (Emphasis supllied) Explanation I.-For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be _________ Page 17 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2.-Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein."
Section-6 as amended by Act 39 of 2005 reads as follows:
[ 6 Devolution of interest in coparcenary property. (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing _________ Page 18 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub--section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-
deceased son or of such pre-deceased daughter; and _________ Page 19 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020
(c) the share of the pre-deceased child of a pre-deceased son or of a predeceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.
Explanation. For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. (4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or greatgrandson for the recovery of any debt due from his father, grandfather or great- grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or _________ Page 20 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation. For the purposes of clause (a), the expression son, grandson or great-grandson shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005*.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation. For the purposes of this section partition means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.] As per proviso to unamended Section-6 and Sub Section 3 of the amended Section-6 makes it clear that it is only the interest of the deceased Mitakshara coparcener in the property that would devolve either by testamentary or intestate succession under the Act. The position of law declared by the Hon'ble Supreme Court in various pronouncements regarding the proviso remains _________ Page 21 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 unaltered by the amendment of Section 6 by Act 39 of 2005. Sub Section-3 of Section-6 is only a reproduction of proviso to old Section-6. The difference between devolution under Section-6 and the devolution under Section 8 was observed by the Supreme Court in Eramma vs Verrupanna & Ors reported in AIR 1966 SC 1879 wherein the Hon'ble Supreme Court pointed out and observed as follows:
It is clear from the express language of the section that it applies only to coparcenary property of the male Hindu holder who dies after the commencement of the Act. It is manifest that the language of S.8 must be construed in the context of S.6 of the Act. We accordingly hold that the provisions of Section 8 of the Hindu Succession Act are not retrospective in operation and where a male Hindu died before the Act came into force i.e., where succession opened before the Act,S. 8 of the Act will have no application.
After elucidating the different contexts under which Sections 6 and 8 would operate, a three judge Bench of the Hon'ble Supreme Court held that Section-8 cannot have retrospective operation and Section 8 should be read in the context of Section-6. The question as to the nature of property which _________ Page 22 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 devolves on a male Hindu under Section 6 vis a vis, the property inherited by a male Hindu under Section-8 was considered by a Full Bench of this Court in Additional Commissioner of Income Tax Madras-I vs. P.C.Karuppan Chettiar (AIR 1979 Mad 1) . Another three judges Bench of the Hon'ble Supreme Court in Gurupad Khandappa Magdum vs. Hirabai Kahandappa Magdum and Ors. reported in AIR 1978 SC 1239 dealing with the consequence of a notional partition, which is to be assumed under explanation 1 to Section-6 as it stood then, observed as follows:
All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they bad separated from one another and had received a share in the partition which had taken place during the life time of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be- treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time _________ Page 23 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition. (Emphasis supplied)"
18. He also relied on the judgment of this Court in S.Sampoornam vs. C.K.Shanmugam reported in 2022(3) CTC 641. The relevant portions are extracted hereunder:-
"13. The above scenario will not apply to the facts of the present case since admittedly, Thalaivirichan Reddy had died even before the coming into force of the Hindu Succession Act, 1956. Therefore, the property was governed under the Mitakshara Law and whatever was inherited by the sons of Thalaivirichan Reddy will continue to retain the character of a coparcenary property in the hands of his sons. Thereby, whatever came into the hands of the first defendant, will also continue to be in the nature of a coparcenery property. Till any children are born to the first defendant, probably the first defendant will be entitled to deal with the property as if it is his individual property. However, the moment a son of daughter (after the 2005 Amendment Act) are born, they automatically get a right over the property by birth. Therefore, insofar as their _________ Page 24 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 shares are concerned, the first defendant will not be entitled to deal with the same."
19. Therefore, from the evidence and the citations referred to by the learned counsel for the respondent, it is very clear that the first item of the property has not lost its character of ancestral property. As far as the other items are concerned, this Court is treated as self acquired property, since settlement has not been proved in the manner known to law. Therefore, as if the parents died intestate left behind the legal heirs as first appellant and respondent, therefore, they are equally entitled to 1/2 share. Therefore, under these circumstances, this Court also as a fact finding Court has re-appreciated the entire evidence and has come to the conclusion that the appeal fails and the respondent/plaintiff is entitled to get ½ share from the suit properties and this Court does not find any perversity in the judgment and decree passed by the trial Court and there is no ground to interfere with the findings of the trial Court.
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20. In the result, the appeal fails and the same is dismissed and the judgment and decree of the trial Court is confirmed. In a recent judgment of the Hon'ble Supreme Court reported in 2022 Live Law (SC) 549, Kattukandi Edathil Krishnan and another vs. Kattukandi Edathil Valsan and others, it has been held as follows:-
''33.We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die, as has been done in the instant case.
There is also no need to file a separate final decree proceedings.
In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree.
Needless to state that the suit comes to an end only when a final decree is drawn. Therefore, we direct the Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon _________ Page 26 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings.
34. We direct the Registry of this Court to forward a copy of this judgment to the Registrar Generals of all the High Courts who in turn are directed to circulate the directions contained in paragraph ‘33’ of this judgment to the concerned Trial Courts in their respective States.''
21.As per the above latest decision of the Hon'ble Supreme Court, a party need not file a final decree application separately. The Court itself can suo motu initiate final decree proceedings after passing the preliminary decree. Therefore, the appellants are directed to divide the property by metes and bounds and hand over ½ share from the suit properties in favour of the respondent/plaintiff within a period of two months from the date of receipt of a copy of this judgment, otherwise, the trial Court is directed to initiate suo motu final decree proceedings and appoint an advocate _________ Page 27 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 commissioner and proceed with the same and pass a final decree. Since already the suit is pending from 2014, all the final decree proceedings shall be completed within a period of six months from the date of its initiation. Registry is directed to send the original records to the trial Court concerned along with the judgment and decree made in this appeal within a period of fifteen days from the date of this judgment. No costs. Consequently, connected miscellaneous petitions are closed.
30.06.2022 Index : Yes / No Speaking Order : Yes / No am To
1. The Principal District Judge, Pudukkottai.
2. The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.
_________ Page 28 of 29 https://www.mhc.tn.gov.in/judis A.S.(MDNo.65 of 2020 P.VELMURUGAN, J.
am A.S. (MD) No.65 of 2020 30.06.2022 _________ Page 29 of 29 https://www.mhc.tn.gov.in/judis