Vacant Land Left Out Of Partition: Madras HC Upholds Remand To Work Out Plaintiff’s Share

The plaintiff sued for partition and obtained a preliminary decree declaring a one-fourth share in the suit properties.

The decree directed that, instead of a share in the scheduled house, he should receive equivalent property from the other suit properties.

In the final-decree proceedings, a Commissioner’s report was acted upon, properties were allotted, and possession was delivered; some parties later alienated their allotted properties.

The plaintiff then sought allotment of his share in vacant land adjacent to the house, contending that the land had not been divided or compensated for.

The trial Court dismissed the application, but the Principal District Judge allowed the plaintiff’s appeal and remitted the matter for consideration of the vacant land.

The defendants challenged that order under Order 43 Rule 1(U) CPC.

A final decree must conform to the rights declared in the preliminary decree and determine those rights through an effective division of the suit property.

A party’s declared share is not extinguished merely because a portion of the suit property was omitted from an earlier allotment.

The Court also considered the doctrine of approbate and reprobate and the decisions cited by the appellants, including Krishna Reddiar v. Ramanuja Reddiar, AIR 1929 Madras 492, and a decision reported at 1930 Law Weekly 30; it held those authorities inapplicable on the facts.

The preliminary decree addressed the house and directed that the plaintiff receive equivalent property in lieu of it, but did not adjudicate or provide for the adjacent vacant land.

The Court therefore treated the plaintiff’s claim as one to work out his existing declared share in property left undivided, rather than as an attempt to reopen rights already settled by the final decree.

His claim did not amount to approbating and reprobating, and the appellants’ cited decisions did not bar it.

The appellate Judge was consequently justified in remitting the matter so the trial Court could effect an allotment in accordance with the preliminary decree.

The Court dismissed the civil miscellaneous appeal, and confirmed the appellate judgment and decree dated 28 April 2025 remitting the matter for consideration of the plaintiff’s share in the vacant land.

There was no order as to costs, and the connected miscellaneous petition was closed.