Madras HC Sets Aside Half-Brother’s Ex Parte Partition Decree, Remands Suit After Plaintiff Failed To Join Father’s Children From First Marriage

The first respondent filed a partition suit against his father and brother, seeking a one-third share in the suit properties.

The defendants were set ex parte, and the trial court passed an ex parte preliminary decree on 27 April 2021.

The petitioner, a daughter of the second respondent by his first wife and a third party to the suit, challenged the decree, asserting that the plaintiff had omitted her and her siblings, who were also sharers.

The plaintiff contended that the petitioner and her siblings had relinquished their rights under a settlement deed dated 27 September 2012; however, the petitioner argued that the deed and alleged relinquishment had not been disclosed in the partition suit.

Article 227 permits the High Court to exercise supervisory jurisdiction where, among other circumstances, there is an abuse of process or an issue going to the root of the matter; a judgment or order obtained by fraud is a nullity and may be challenged in appropriate proceedings (Satluj Jal Vidyut Nigam Ltd. v. Raj Kumar Rajinder Singh, as discussed at para. 6, pp. 5–7).

Fraud, including material misrepresentation or collusion intended to deprive another of property rights, vitiates the affected proceeding (State of Andhra Pradesh v. T. Suryachandra Rao, discussed at para. 7, pp. 7–8).

The Court also applied the principle that all sharers are necessary parties to a partition suit and that a partition decree passed without impleading them is invalid, referring to Geeta Bai v. K. Arjun Singh.

The Court found that the plaint neither disclosed the existence of the petitioner and her siblings nor pleaded that they had relinquished their rights.

The suit properties included properties allegedly covered by the settlement deed, yet no supporting document had been filed with the plaint.

Because the omitted persons’ interests could reduce the plaintiff’s claimed share, their absence was material to the partition and the decree.

The plaintiff’s reliance on the alleged relinquishment could not cure the omission in the absence of pleadings and supporting documents before the trial court.

The Court therefore treated the nondisclosure as suppression of material facts warranting intervention under Article 227.

The plaintiff was granted liberty to implead the petitioner and her siblings and, if advised, amend the pleadings and file supporting documents.

The plaintiff was directed to file the necessary application within two weeks of receiving the order; failing that, the suit would be dismissed for non-joinder of necessary parties.

The trial court was directed to decide the application within eight weeks of its numbering and endeavour to dispose of the suit within nine months thereafter.