Durga vs A.V.Sivakumar

2026:MHC:4513
CRP No. 3627 of 2026
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03-11-2026
CORAM
THE HON'BLE MR.JUSTICE S. SOUNTHAR
CRP No. 3627 of 2026 and
CMP Nos.15756, 21795 and 26858 of 2026
CNR: {HCMA011404342026}
Durga, W/o. Prasath,
14/7, Professor Sanjeev Street,
Mylapore, Chennai-04.
..Petitioner(s)
Vs
1. A.V.Sivakumar, S/o. A.Venkatesh,
New No.41, Old No.23,
Gopal Chetty Street, Anakapathur,
Chennai-47.
2. A.Venkatesh, S/o. Alli. Gopal Chettiyar,
New No.41, Old No.23,
Gopal Chetty Street,
Anakapathur, Chennai-47.
3. V.Harikrishanan (Died)
S/o. A.Venkatesh,
New No.41, Old No.23,
Gopal Chetty Street,
Anakapathur,
Chennai-47.
4. P. Swathi, w/o late A.V.Harikrishnan,
No.70/A, Kamarajar Salai,
Anakaputhur, Chennai 600 070
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CRP No. 3627 of 2026
5. Minor Sai Saatvik A.H.
s/o late A.V.Harikrishnan,
Minor rep by his mother and natural guardian
P.Swathi, No.70/A, Kamarajar Salai,
Anakaputhur, Chennai 600 070
R3 Died, R4 and R5 Brought on record as LRs of
the deceased R3 vide order of court dated
11.09.2026 made in Cmp.No.23966/2026 in
Crp.No.3627/2026
..Respondent(s)
Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of
India to set aside the fair and decretal order dated 27.04.2021 in OS No.105 of
2015 on the file of the Additional District Judge, Kancheepuram District, at
Chengalpattu.
For Petitioner(s): Mr. C.P.Sivamohan
for Mr. P.A.Sai Govindaraja
assisted by Mr. G.Murugan
For Respondent(s): Mr. M.Sriram for R1
Mr. P.Senthilkumar for R2
Mr.S.Vijayakumar for R4 and R5
R3 - died
ORDER
This civil revision petition has been filed challenging the judgment and
decree passed by the Trial Court on the ground of suppression of material facts
and fraud.
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2. The petitioner herein is a third party to the suit in O.S.No.105 of 2015.
nd
In the above said suit, the first respondent herein is the plaintiff and the 2 and
rd
3 respondent herein are the defendants 1 and 2.
3. The Facts leading to the filing of this civil revision petition reads as
follows:-
nd st rd nd
The 2 respondent herein is the father of 1 & 3 respondents. The 2
respondent has got two wives, namely Gowri and Banumathi and he got three
st
children though his 1 wife, namely Durga (petitioner herein), Bharathi and
nd
Rajagopal and two sons through his 2 wife, namely Sivakumar and
Harikrishnan, the respondents 1 and 3.
st
3.1. The 1 respondent herein/plaintiff filed the above said suit in
O.S.No.105 of 2015 against the respondents 2 and 3/defendants 1 and 2 on the
file of Additional District Judge, Kancheepuram District, at Chengalpattu
seeking partition of the suit properties and to allot 1/3 share to him. The
respondents 2 & 3/ defendants 1 and 2 remained exparte in the suit and hence,
exparte preliminary decree for partition was passed allotting 1/3 share to the
st
plaintiff/ 1 respondent in the suit properties on 27.04.2021. Aggrieved by the
same, the present civil revision petition has been filed.
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3.2. The learned counsel for the petitioner would submit that the first
respondent/ plaintiff had suppressed the existence of other sharers, namely his
st nd
step brother and sisters born through 1 wife of the 2 respondent. It is also
stated that the first respondent admitted the relationship between him and the
petitioner and the other siblings of the petitioner in the earlier suit filed by him
in O.S.No.107 of 2014 on the file of District Munsif, Alandur, wherein, the suit
was filed for declaration regarding portion of the suit properties, which had
nd
been settled in his favour by the 2 respondent. In the light of the admitted
position, the learned counsel submitted that the petitioner is none other than the
nd st
daughter born to the 2 respondent through his 1 wife, the suit for partition
st
filed by the 1 respondent, suppressing the existence of other sharers is not
st
maintainable and the decree obtained by the 1 respondent, without impleading
the said step brother and sisters is vitiated by fraud. Hence, the petitioner has
come before this court by filing the civil revision petition to set aside the
judgment and decree passed in O.S.No.105 of 2015.
4. The learned counsel for the first respondent/plaintiff would submit that
nd
the 2 respondent/1st defendant executed a settlement deed in favour of the
children of his first wife, namely, the petitioner and two others in respect of
portion of the suit property under a settlement deed dated 27.09.2012, where
under the petitioner and her siblings’ released their share in the other properties
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CRP No. 3627 of 2026
of family. Therefore, according to him, the petitioner has no right over the suit
properties, as she relinquished her right under a registered document.
5. The learned counsel appearing for the respondents opposed the
revision on the ground that if the petitioner pleads fraud, it is for him to explore
other options available under law and he cannot invoke the supervisory
jurisdiction, without exploring other alternative remedies.
6. The Apex Court in Satluj Jal Vidyut Nigam Ltd. v. Raj Kumar
Rajinder Singh (Dead) through LRs, reported in 2019 (14) SCC 449 , after
observing fraud vitiates every solemn act held that supervisory jurisdiction of
the Court can be exercised in case of error apparent on the face of record, abuse
of process and if the issues goes to the root of the matter. The relevant
observation reads as follows:-

75. In A.V. Papayya Sastry v. Govt. of A.P.,  (2007)
4 SCC 221, this Court as to the effect of fraud on the
judgment or order observed thus: (SCC pp.231 &236-
37, paras 21-22 & 38-39)
“21. Now, it is well-settled principle of law that if
any judgment or order is obtained by fraud, it cannot be
said to be a judgment or order in law. Before three
centuries, Chief Justice Edward Coke proclaimed;
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‘Fraud avoids all judicial acts, ecclesiastical
or temporal.’
22. It is thus settled proposition of law that a
judgment, decree or order obtained by playing fraud on
the Court, Tribunal or Authority is a nullity and non-est
in the eye of law. Such a judgment, decree or order --by
the first Court or by the final Court-- has to be treated
as nullity by every Court, superior or inferior. It can be
challenged in any Court, at any time, in appeal,
revision, writ or even in collateral proceedings.
…….
38. The matter can be looked at from a different
angle as well. Suppose, a case is decided by a
competent Court of Law after hearing the parties and
an order is passed in favour of the applicant/Plaintiff
which is upheld by all the courts including the final
Court. Let us also think of a case where this Court does
not dismiss Special Leave Petition but after granting
leave decides the appeal finally by recording reasons.
Such order can truly be said to be a judgment to which
Article 141 of the Constitution applies. Likewise, the
doctrine of merger also gets attracted. All orders
passed by the courts/authorities below, therefore, merge
in the judgment of this Court and after such judgment, it
is not open to any party to the judgment to approach
any court or authority to review, recall or reconsider
the order.
39. The above principle, however, is subject to
exception of fraud. Once it is established that the order
was obtained by a successful party by practising or
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CRP No. 3627 of 2026
playing fraud, it is vitiated. Such order cannot be held
legal, valid or in consonance with law. It is non-existent
and nonest and cannot be allowed to stand. This is the
fundamental principle of law and needs no further
elaboration. Therefore, it has been said that a
judgment, decree or order obtained by fraud has to be
treated as nullity, whether by the court of first instance
or by the final court. And it has to be treated as nonest
by every Court, superior or inferior.
Supervisory jurisdiction of the court can be exercised
in case of error apparent on the face of the record,
abuse of process and if the issue goes to the root of the
matter.
7. The Apex Court in The State of Andhra Pradesh & Anr vs
T.Suryachandra Rao reported in 2005 (6) SCC 149 , while explaining the
expression “fraud” observed that a collusion or conspiracy with a view to
deprive the rights of the others in relation to a property would render the
transaction void ab initio . The relevant observation reads as follows:
10. "Fraud" as is well known vitiates every solemn act.
Fraud and justice never dwell together. Fraud is a conduct
either by letter or words, which includes the other person
or authority to take a definite determinative stand as a
response to the conduct of the former either by words or
letter. It is also well settled that misrepresentation itself
amounts to fraud. Indeed, innocent misrepresentation may
also give reason to claim relief against fraud. A fraudulent
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misrepresentation is called deceit and consists in leading a
man into damage by willfully or recklessly causing him to
believe and act on falsehood. It is a fraud in law if a party
makes representations, which he knows to be false, and
injury enures therefrom although the motive from which
the representations proceeded may not have been bad. An
act of fraud on court is always viewed seriously. A
collusion or conspiracy with a view to deprive the rights of
the others in relation to a property would render the
transaction void ab initio. Fraud and deception are
synonymous. Although in a given case a deception may not
amount to fraud, fraud is anathema to all equitable
principles and any affair tainted with fraud cannot be
perpetuated or saved by the application of any equitable
doctrine including res judicata. (See Ram Chandra Singh
v. Savitri Devi and Ors.  (2003) 8 SCC 319).
8. In the judgment passed in Geeta Bai and others Vs. K.Arjun Singh
and others in SLP (Civil).No.20008 – 20010 of 2026 , the Apex Court held that
a compromise decree obtained by the brothers, without impleading necessary
party to the suit, was a nullity in the eyes of law. The relevant observation
reads as follows:
12. The compromise decree obtained by the brothers/legal
heirs being the plaintiffs and the defendants without
impleading Late Smt. Ballo Bai or her legal heirs, despite
her being a necessary party to the suit, was a nullity in the
eyes of law.
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9. In the light of law settled in the above case laws, let us examine the
facts of present case to decide whether it is a fit case to exercise power under
Article 227 of the Constitution of India. A perusal of the pleadings in
st
O.S.No.105 of 2015 filed by the 1 respondent/plaintiff would indicate that the
st
1 respondent has not stated anything regarding the settlement deed executed by
nd st
the 2 respondent in favour of his 1 wife’s children and the alleged
st
relinquishment by them. The 1 respondent also failed to mention the existence
nd st
of other children born to the 2 respondent through his 1 wife. Therefore,
st
without impleading all the sharers, the 1 respondent/plaintiff filed the suit for
partition against his father and brother alone and obtained a decree for partition.
st nd
If the interest of the children of the 1 wife of 2 respondent is taken into
st
consideration, certainly, the shares to the 1 respondent/plaintiff will get
diminished.
10. It is settled law that all the sharers are necessary parties in a suit for
partition and any decree passed in a suit for partition, without impleading all the
sharers is invalid. Even though it is submitted by the learned counsel for the
st nd
first respondent/plaintiff that the children of 1 wife of the 2 respondent,
including the petitioner relinquished their share over the family properties, after
accepting the settlement deed dated 27.09.2012, the first respondent/plaintiff
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has not pleaded anything in the plaint to that effect and no document has been
filed along with the plaint to substantiate the same. It is also seen that the
properties covered by the settlement deed have been included as the suit
properties. If the plea of relinquishment raised by the first respondent/plaintiff
is true, in all fairness, he ought to have pleaded the same in the present suit and
nd
ought not have included the properties settled in favour of children of 2
st
respondent through his 1 wife, including the petitioner. Therefore, the said
submission made by the learned counsel for the first respondent/ plaintiff cannot
be accepted in the absence of necessary pleadings and supporting documents
before the Trial Court. Since the impugned judgment and decree have been
st
obtained by the 1 respondent/ plaintiff without disclosing the existence of the
other sharers, this court feels that the impugned judgment and decree are
vitiated by suppression of material facts. Therefore, this Court considers it as a
fit case to exercise its supervisory power under Article 227 of the Constitution
of India and interfere with the impugned judgment and decree.
nd
11. At this juncture, the learned counsel for the 2 respondent/1st
st
defendant would submit that the 1 defendant already filed an application to set
aside the exparte decree passed in the suit and the same is pending
consideration before the Trial Court.
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st
12. The learned counsel for the 1 respondent/plaintiff would fairly
nd
submit that the application filed by the 2 respondent/1st defendant seeking to
set aside the exparte decree may be allowed and an opportunity shall be given to
st
the 1 respondent/plaintiff to amend the pleadings. The said statement is
recorded.
13. In view of the above discussion, this civil revision petition is allowed
with the following directions.
i) The impugned exparte preliminary decree passed by the Trial Court in
O.S.No.105 of 2015, dated 27.04.2021 is set aside and matter is remanded back
to the file of Additional District Judge, Kancheepuram District at Chengalpattu
for fresh consideration.
st
ii) Liberty is granted to the 1 respondent/plaintiff to implead the
petitioner and her siblings in the suit. It is also open to the first
respondent/plaintiff to amend the pleadings, if so advised and file necessary
documents in support of the pleadings to be introduced in the plaint.
st
iii) The 1 respondent/ plaintiff is directed to file necessary amendment
application in the suit, within a period of two weeks from the date of receipt of
copy of this order. In case, impleading petition is not filed within the time
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st
stipulated, the suit filed by the 1 respondent shall be dismissed on the ground
of non-joinder of necessary parties.
st
iv) The application to be filed by the 1 respondent/plaintiff for
amendment of plaint and pleadings, by impleading necessary parties, shall be
disposed of by the Trial Court, within a period of 8 weeks from the date of
numbering such application.
v) Taking into consideration that the original suit is of the year 2015, the
Trial Court shall make all endeavour to dispose of the suit as expeditiously as
possible, preferably, within a period 9 months from the date of disposing of the
amendment application.
Consequently, connected CMP Nos.15756 and 21795 of 2026 are closed.
14. Since the civil revision petition is allowed and the impugned order
judgment and decree passed by the Trial Court is set aside, no further order is
required to be passed in CMP No.27858 of 2026 seeking leave to implead one
nd
A.V.Bharathi, sister of the petitioner as 2 petitioner in this civil revision
petition. Hence, CMP No.26858 of 2026 is also closed.
03-11-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
MST
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To
The Additional District Judge,
Kancheepuram District at Chengalpattu.
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CRP No. 3627 of 2026
S.SOUNTHAR, J.
MST
CRP No. 3627 of 2026
03-11-2026
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