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2012 DIGILAW 1806 (MAD)

Latha Rajagopalan v. S. Sampath Kumar

2012-04-09

P.R.SHIVAKUMAR

body2012
Judgment :- 1. The Plaint averments, in brief, are as follows: (a) The property bearing Old Door No.15, New No.31, Rangan Street, T.Nagar, Chennai – 600 017 more fully described in the 'A' Schedule annexed to the plaint was the absolute property of one V.Srinivasan. He died intestate on 20.06.2001 leaving behind him the plaintiff Latha Rajagopalan and the defendants 1 to 7 and also one S.Kalyani (no more) as his legal representatives to inherit the said property. The said Kalyani, who was none other than the mother of the plaintiff, died on 01.10.2003 leaving behind the plaintiff and the defendants 1 to 7 as her legal representatives. The movables described in plaint 'B' schedule were the absolute properties of Kalyani and the deceased Kalyani did have a common 1/9th share in the property left by her husband Srinivasan, namely the property described as 'A' Schedule. After the demise of Kalyani, plaintiff and Defendants 1 to 7 became entitled to 1/8th share each in both plaint 'A' and 'B' schedule properties. Though the plaintiff was making repeated requests to the defendants to effect an amicable partition, the defendants, especially Defendants 1 to 5 simply dragged on the matter putting forward one or other excuses. (b) Meanwhile the brothers of the plaintiff, namely Defendants 1 to 5, especially Defendants 1 to 4, are trying to keep the properties for themselves without giving any benefit of enjoyment to the family members. The first defendant is in custody of 46 items of silver ornaments and 23 items of gold jewels described in Plaint 'B' schedule. A list of the said items was prepared by a Goldsmith known to the family members and xerox copies of the same have been given to the plaintiff and each one of the defendants. The first defendant is keeping the original. Despite repeated demands made by the plaintiff, the first defendant did not come forward to give the 1/8th share of the plaintiff in plaint 'B' schedule items to the plaintiff. As the attempts made by the plaintiff to get an amicable partition of plaint 'A' schedule property and get her 1/8th share in the plaint 'B' schedule items proved ineffective, she issued a lawyer's notice on 10.04.2007 calling upon the defendants to come forward and join her in effecting a partition of the father's property, namely plaint 'A' schedule property. As the attempts made by the plaintiff to get an amicable partition of plaint 'A' schedule property and get her 1/8th share in the plaint 'B' schedule items proved ineffective, she issued a lawyer's notice on 10.04.2007 calling upon the defendants to come forward and join her in effecting a partition of the father's property, namely plaint 'A' schedule property. In the said notice, the first defendant was also called upon to disburse the plaintiff's 1/8th share in the plaint 'B' schedule items. Though all the defendants received the said notice, except the 5th defendant, other defendants failed to comply with the demand made in the notice. The 5th defendant alone sent a reply dated 28.04.2007 containing incorrect and untenable averments. Plaintiff being a co-owner and co-sharer of the plaint 'A' and 'B' schedule properties, she is in joint possession and enjoyment of the same. As it is no more convenient to continue the joint possession, the plaintiff is constrained to file a suit for partition of the suit properties and separate possession of her 1/8th share and for cost of the suit. 2. The averments found in the written statement filed by the defendants 1 to 4, in brief, are as follows:- It is not correct to state that the father of the parties, namely Late P.Srinivasan died intestate. On the other hand, before his death on 26.06.2001, he had been repeatedly stating that he had written a Will bequeathing the immovable property, namely the land and the building shown as plaint 'A' schedule property, to his sons, since all the three daughters of Srinivasan had been given decent marital life. However, by way of compensation to the daughters for their dis-inheritance, it has been provided in the Will that they would be entitled to a sum of Rs.10,00,000/-each and the sons of Srinivasan shall bear the expenses for making such payment. On more than one occasion, Late V.Srinivasan informed the said fact of his having written a Will with the above said particulars to the plaintiff in the presence of the defendants. The plaintiff is aware of the fact that the immovable properties of Srinivasan belong to his sons as per his Will and that is the reason why the sons of Srinivasan had not purchased any immovable property of their own even though they are financially sound and decently employed. The plaintiff is aware of the fact that the immovable properties of Srinivasan belong to his sons as per his Will and that is the reason why the sons of Srinivasan had not purchased any immovable property of their own even though they are financially sound and decently employed. Defendants 1 to 4 never had an opportunity to really have a detailed discussion. All the sons of Srinivasan are living together as a joint family amicably sharing the plaint 'A' schedule property. Defendants 1 to 4 do not have any intention to deprive anybody of his/her legal claim. Defendants 1 to 3 are presently living in plaint 'A' schedule property. The 5th defendant is employed in USA and the 4th defendant is staying in a nearby place. However, all the defendants 1 to 4 meet on regular basis and celebrate the festivals together in the plaint 'A' schedule property. Except the right to claim Rs.10,00,000/- each, the plaintiff and Defendants 6 and 7 do not have any right to claim a share in the plaint 'A' schedule property which belong to the sons of P.Srinivasan to the exclusion of his daughters. Though the execution of the Will containing the above said particulars were known to all the parties, the defendants were not able to trace the Will till the date of filing of the written statement. Meanwhile the mother of the parties Kalyani died on 02.10.2003 and thereafter, the defendants 1 to 4 were not able to trace the Will. During the life time of Kalyani (mother of the plaintiff and the defendants), the plaintiff did not raise any question regarding partition. Had such question been raised during the life time of Kalyani, she would have categorically informed the plaintiff the intention of Late V.Srinivsan. Though the defendants were in favour of an amicable settlement, no immediate decision could be taken since the Will could not be traced. The plaint 'A' schedule property is a single dwelling unit and the same cannot be partitioned into eight shares. Even if it is assumed that the property could be partitioned and the plaintiff is given 1/8th share, if the Will is traced out on a later date, the intention of the executor of the Will would have been defeated. It was only in the above said background, the plaintiff was advised to be patient. Even if it is assumed that the property could be partitioned and the plaintiff is given 1/8th share, if the Will is traced out on a later date, the intention of the executor of the Will would have been defeated. It was only in the above said background, the plaintiff was advised to be patient. It is true that all the gold and silver ornaments listed in plaint 'B' schedule are in the custody of the first defendant. After the demise of Kalyani, a list of the entire jewelry was prepared by a goldsmith known to the family in the presence of the plaintiff and the defendants. The first defendant does have no hesitation to produce the original list of the items mentioned in plaint 'B' schedule. The plaintiff was never denied her right to have 1/8th share in the plaint 'B' schedule. Under such circumstances, the defendants were totally surprised to receive a lawyer's notice dated 10.04.2007 demanding partition of the suit properties. Even after the receipt of the lawyer's notice, the defendants felt that the family dispute should not be dragged to the Court and on the other hand the same should be amicably settled among them. The defendants all along were under the impression that the plaintiff, being the eldest member of the family and the person who was very close to their father, was very much aware of the contents of the Will of their father Late V.Srinivsan. The defendants never thought of their being dragged to the Court of law. Their father V.Srinivasan was one of the greatest advocate of his time, who would not have intended his children to stand before the Court fighting for a small property. The defendants felt ashamed of approaching the advocate and giving a legal reply to the notice. They were of the view that smooth settlement of the issue was possible. They never expected the plaintiff to file the suit for partition, since there was no hatred and ill-will among the children of Late Srinivasan. Even now the defendants do have the hope of having an amicable settlement. Since the Defendants 1 to 5 want to give effect to the Will of their father, they are willing to pay a sum of Rs.10,00,000/-to each one of their sisters, namely the plaintiff and the Defendants 6 and 7. Even now the defendants do have the hope of having an amicable settlement. Since the Defendants 1 to 5 want to give effect to the Will of their father, they are willing to pay a sum of Rs.10,00,000/-to each one of their sisters, namely the plaintiff and the Defendants 6 and 7. The Defendants are still in search of the Will and once it is found, all legal formalities would be followed. The valuation of the property given in the plaint and the Court fee paid thereon are not correct and the hence the suit shall be dismissed. 3. The 5th defendant has filed a separate written statement containing averments that are, in brief, as follows:- Plaint averments are denied. The 5th defendant being one of the legal heirs of Late.Srinivsan is entitled to 1/8th share in the suit properties similar to the entitlement of the plaintiff. However, since the plaintiff is not in possession of the suit schedule property, payment of a fixed Court fee of Rs.1000/-under Section 37(2) of Tamil Nadu Court Fee and Suit Valuation Act, 1955 r/w. Madras High Court court fee Rules is not correct. The 5th defendant is not aware of the existence of any jewelry mentioned in Plaint 'B' schedule and if it is true, this defendant shall also be entitled to 1/8th share in the same and the 5th defendant prays for a decree in the suit as prayed for. 4. Averments found in the written statement of 6th defendant, in brief, are as follows: The 6th defendant is one of the three daughters of Late P.Srinivasan. All the 8 children of Late Srinivasan being brothers and sisters do have mutual love and affection for each other and the 6th defendant is very much concerned with the continued maintenance of love and mutual affection. She has no knowledge of any Will executed by Late V.Srinivsan during his life time. There was no occasion for the 6th defendant to have a discussion with others about such a Will. However, their mother Late Kalyani Srinivsan, during her life time, informed that Late Srinivasan had left a Will, but she did not elaborate the contents of the Will. Defendants 1 to 5 being the sons of Late Srinivasan may be directed to produce the original Will said to have been executed by Late Srinivasan within a time frame. However, their mother Late Kalyani Srinivsan, during her life time, informed that Late Srinivasan had left a Will, but she did not elaborate the contents of the Will. Defendants 1 to 5 being the sons of Late Srinivasan may be directed to produce the original Will said to have been executed by Late Srinivasan within a time frame. In the absence of such production of the Will, the parties shall be advised to settle the issue amicably so that the family will not be split-up for extraneous reasons. If such amicable settlement is not possible and if the Will is not produced, suitable orders may be passed in terms of the provisions of the Hindu Succession Act. 5. The averments found in the written statement of the 7th defendant, in brief, are as follows: On principle, the 7th defendant is agreeable for effecting a partition of the properties left behind by their parents. As mentioned in Paragraph 4 of the plaint, the father of the parties, namely V.Srinivasan died intestate on 20.06.2001 leaving behind him, his wife Kalyani and 8 children who are the plaintiff and the defendants, as his legal heirs. Subsequently, Kalyani, the mother of the plaintiff and the defendants also died on 01.10.2003 and on her death, the plaintiff and all the defendants including the 7th defendant became jointly entitled to the estate of Late Mr and Mrs. Srinivasan and each one of the plaintiff and the defendants has become entitled to 1/8th share. The 7th defendant is also entitled to 1/8th share in the properties mentioned in Plaint 'A' and 'B' Schedules. It is true that the demand made by the plaintiff for partition was not properly responded by the Defendants 1 to 4. It is also true that the first defendant is in custody of silver articles and gold jewelry described in plaint 'B' schedule. When the plaintiff caused a notice to be issued on 10.04.2007, the 7th defendant did not send a reply as she was in favour of partition and she felt it not necessary to send a reply to the said notice. In the event of a partition being ordered by this Court, a valuation of the properties should be made and the 7th defendant should be allotted 1/8th share, which will be equal to the shares of plaintiff and the Defendants 1 to 6. 6. In the event of a partition being ordered by this Court, a valuation of the properties should be made and the 7th defendant should be allotted 1/8th share, which will be equal to the shares of plaintiff and the Defendants 1 to 6. 6. Based on the pleadings , the following issues and additional issues came to be framed on 25.06.2010 and 22.02.2011 respectively:- Issues framed on 25.06.2010: 1. Whether the plaintiff is entitled to 1/8th share in the 'A' schedule property? 2. To what reliefs the parties are entitled to? Additional Issues Framed on 22.02.2011: 1. Whether the father has left a Will as pleaded in the written statement? 2. Whether the suit property is impartible? 7. The plaintiff appeared as the sole witness on her side and deposed as PW1. Exs.P1 to P4 were marked on the side of the plaintiff. The first defendant figured as the sole witness on the side of the defendants and deposed as DW1. No document was produced on the side of the defendants. Issue Nos.1 and 2 and Additional Issue Nos.1 and 2: 8. Plaintiff and Defendants 1 to 7 are the children of Late V.Srinivasan and Late Kalyani. Defendants 1 to 5 are their sons and the plaintiff and Defendants 6 and 7 are their daughters. It is an admitted fact and not in dispute that the immovable property concerned in this case, namely the property described in plaint 'A' schedule was the absolute property of Late V.Srinivasan. There is also no dispute regarding the date of death of Late V.Srinivasan. All the parties do admit that Late V.Srinivasan died on 20.06.2001. It is the case of the plaintiff that Late V.Srinivasan died intestate without leaving any Will and hence the plaintiff, defendants 1 to 7 and their mother Kalyani became entitled to 1/9th share each in the plaint 'A' schedule property as legal heirs of Late V.Srinivasan. It is the further case of the plaintiff that since the mother of the parties namely, Mrs.Kalyani also died intestate on 01.10.2003, her 1/9th share in the plaint 'A' schedule property also came to the plaintiff and the defendants 1 to 7 in equal shares and thus, plaintiff and defendants 1 to 7 became entitled to 1/8th share each in the plaint 'A' schedule property. The calculation and claim of share, in the absence of any testament, is admitted to be correct. 9. The calculation and claim of share, in the absence of any testament, is admitted to be correct. 9. On the other hand, Defendants 1 to 4, in their written statement, would contend that Late Srinivasan did not die intestate and on the other hand, before his death he had executed a Will bequeathing the entire 'A' schedule property to his sons, namely Defendants 1 to 5 and excluded his daughters, namely plaintiff and Defendants 6 and 7 from inheriting the said property and that, in order to compensate the said disinheritance in the Will itself, the testator Srinivasan had provided that his sons, namely Defendants 1 to 5 should equally contribute and make payment of a sum of Rs.10 lakhs each to the plaintiff and defendants 6 and 7. Based on the said contention, the defendants 1 to 4 have contended that the plaintiffs would not be entitled to a share in plaint 'A' schedule property and at best she could get only a sum of Rs.10 lakhs from the defendants 1 to 5. However, the 5th defendant, one of the sons of Late Srinivasan, has not fallen in line with his brothers, namely defendants 1 to 4. On the other hand, he has supported the case of the plaintiff by admitting the correctness of the plaintiff's claim that V.Srinivasan died intestate and the plaintiff is entitled to 1/8th share in the plaint 'A' schedule property. Besides making such an averment in the written statement, Defendant No.5 has also filed a memo along with necessary Court fee praying for division of the suit properties as prayed for in the plaint and allotment of 1/8th share to him. 10. Per contra, one of the sisters, namely the 6th defendant has made an attempt to support the case of the Defendants 1 to 4 to some extent by pleading ignorance as to whether her father Late. Srinivasan had executed any Will during his life time. She has stated in her written statement that her mother Kalyani during her life time informed that Late. Srinivasan had left a Will, but the contents of the Will were not informed by her. Srinivasan had executed any Will during his life time. She has stated in her written statement that her mother Kalyani during her life time informed that Late. Srinivasan had left a Will, but the contents of the Will were not informed by her. The 6th defendant has also contended that if at all there is such a Will, the defendants 1 to 4 should be directed to produce the original Will and in the absence of production of such original Will, the Court may pass suitable orders in terms of the provisions of the Hindu Succession Act. The 7th defendant has also fallen in line with the stand taken by the plaintiff. Besides supporting the case of the plaintiff, she has also filed a memo praying for the allotment of her 1/8th share in the suit properties and paid the necessary Court fee for such allotment. 11. In the light of the above pleadings, unless the defendants 1 to 4 are able to show that Late Srinivsasan did not die intestate and on the other hand he had left a Will as claimed by them, the claim of the plaintiff that plaintiff and the defendants 1 to 7 have got 1/8th share each in the suit 'A' schedule property cannot be discountenanced. Even if the defendants 1 to 4 are able to produce any such Will, unless they get it probated, it shall not be used in evidence to prove the right derived under the said Will. Admittedly, the defendants 1 to 4 were not able to trace the alleged Will and produce the same. They have also not obtained any probate. Under such circumstances, there is no other option except to hold that the case of the plaintiff that Late. Srinivasan died intestate is true. 12. In addition, it should also be noticed that though the Defendants 1 to 4 would state that as per the Will of their father, their sisters, namely plaintiff and defendants 6 and 7 should have been paid Rs.10 lakhs each, there is no pleading and no evidence to the effect that the said amount was paid to them. In this regard, the plaintiff, who figured as PW1, has given clear and cogent evidence to the effect that her father Late Srinivasan died intestate. The first defendant, who figured as DW1, has filed a proof affidavit, which was accepted as his evidence in chief. In this regard, the plaintiff, who figured as PW1, has given clear and cogent evidence to the effect that her father Late Srinivasan died intestate. The first defendant, who figured as DW1, has filed a proof affidavit, which was accepted as his evidence in chief. In the said proof affidavit, he has stated that his father Late Srinivasan had written a Will and as per the Will he had bequeathed the entire suit 'A' schedule property to all his sons, namely Defendants 1 to 5 and that in the said Will itself Srinivasan had directed his sons to give a sum of Rs.10 lakhs each to the plaintiff and the defendants 6 and 7. The entire contents of his proof affidavit is nothing but almost a replica of the averments found in the written statement filed by Defendants 1 to 4. 13. During cross-examination, DW1 submitted that two years prior to his death, his father informed the plaintiff and defendants and also their mother about the Will executed by him. But, he would state that the Will was not registered. DW1 also made an attempt to show that the Will executed by his father had been destroyed by the plaintiff subsequently. But the same goes contra to the pleadings made by the Defendants 1 to 4 in their written statement. Throughout, the defendants 1 to 4 maintained that there was cordial relationship between the plaintiff and the defendants and at no place in the written statement, they have stated that the Will went into the hands of the plaintiff and the plaintiff destroyed it. On the other hand, the defendants 1 to 4 in their written statement had simply stated that the will could not be traced and soon after tracing it, necessary legal action would be taken based on the Will. In addition to expressing their inability to trace the Will, the defendants 1 to 4 have also made evasive statement in their written statement to the effect that they wanted to have only an amicable settlement. Though the defendants 1 to 4 had taken a stand in their written statement that the existence of the Will was known to all the sons and daughters of Late V.Srinivasan, during cross-examination, DW1 would admit that the 5th defendant was in US and he was not aware of the execution of the Will by his father, namely Late V.Srinivasan. Though the defendants 1 to 4 had taken a stand in their written statement that the existence of the Will was known to all the sons and daughters of Late V.Srinivasan, during cross-examination, DW1 would admit that the 5th defendant was in US and he was not aware of the execution of the Will by his father, namely Late V.Srinivasan. This is quite contrary to the pleadings made in the written statement. 14. As pointed out supra, even though 6th defendant made an attempt to support her brothers, namely Defendants 1 to 4, by stating that her mother had informed during her life time that her father Late V.Srinivasan had executed a Will, the same is far from being an admission of the defendants 1 to 4's case that under the Will defendants 1 to 4 alone had been made the beneficiaries and the daughters had been excluded. There is an attempt to show that for the exclusion of the daughters they were sought to be compensated by Rs.10 lakhs each. But yet another legal heir of V.Srinivasan, namely his wife Kalyani was alive and there is no evidence to show what was the arrangement made for her benefit or maintenance. Moreover, when a person claims testamentary succession, the testament, namely the Will should be produced and proved in the manner known to law. Since the same has not been produced and proved in the manner known to law, we have to come to the necessary conclusion that the plaintiff's case that her father Late V.Srinivasan died intestate has got to be accepted. 15. A copy of the legal heir certificate has been produced and marked as Ex.P1. A copy of the letter dated 01.02.2007 issued jointly by the plaintiff and the 7th defendant to the defendants 1 to 6 has been marked as Ex.P2. In the said letter, they had asked the addressees to arrange for a meeting aimed at amicable settlement. Copy of the lawyer's notice dated 10.04.2007 issued by the plaintiff through her lawyer and the acknowledgment cards have been marked as Ex.P3 (series). A copy of the reply notice dated 28.04.2007 sent by the 5th defendant has been produced and marked as Ex.P4. Copy of the lawyer's notice dated 10.04.2007 issued by the plaintiff through her lawyer and the acknowledgment cards have been marked as Ex.P3 (series). A copy of the reply notice dated 28.04.2007 sent by the 5th defendant has been produced and marked as Ex.P4. A consideration of oral testimony of PW1 and documentary evidence, namely Exs.P1 to P4 shows that there was a demand made for partition and Defendants 1 to 4 did not come forward to effect an amicable partition. 16. On the death of Srinivasan, his property devolved upon all his sons and daughters, namely plaintiff and Defendants 1 to 7 and also on his wife Kalyani under the Hindu Succession Act as per the rule of intestate succession and each one of them became entitled to 1/9th share. It is an admitted case of all the parties that Kalyani who inherited 1/9th share in the 'A' schedule property as one of the legal heirs of P.Srinivasan. She died intestate on 01.10.2003 and her share devolved upon the plaintiff and the defendants equally. Therefore, on the death of Kalyani her 1/9th share devolved upon the plaintiff and the defendants equally causing enlargment of the share of each one of them to 1/8 from 1/9. The plaintiff has sought for partition of the suit 'A' schedule property claiming that she is entitled to 1/8th share. Her claim has been supported by the defendants 5 to 7. Though the defendants1 to 4 agree that in the absence of Will, the plaintiff and each one of the defendants 5 to 7 shall be entitled to 1/8th share, they expressed their desire to have an amicable settlement. But, so far they are not able to effect an amicable settlement as far as plaint 'A' schedule property is concern. They also agree that in the absence of Will, a decree could be passed in accordance with the provisions of Hindu Succession Act. 17. As such this Court comes to the conclusion that the plaintiff is entitled to 1/8th share and each one of the defendants 1 to 7 is entitled to 1/8th share in plaint 'A' schedule property. The resistance sought to put up by the defendants 1 to 4 for partition of the suit property is that the property, being a small one, is not partible. The resistance sought to put up by the defendants 1 to 4 for partition of the suit property is that the property, being a small one, is not partible. Plaint 'A' schedule has been described as follows: Schedule - A House ground and premises bearing Old Door No.24 subsequent old No.15, present New No.37 Rangan Street, T.Nagar, Chennai – 17 of the extent of three and half grounds or thereabouts comprised in Old Paimash Nos.1143, 1144, 1153, 1154 and 1155, T.S.No.5507/2, situate within the Registration District of South Chennai and Registration Sub District of T.Nagar. This property is bounded on the East by Old No. 13, New No.20, Rangan Street, West by Old No.16, New No.33, Rangan Street, South by Old No.20, New No.22, Rangan Street and North by Old No.14, New No.29, Rangan Street, T.Nagar, Chennai – 600 017. It is obvious from the said description of property that the total extent of land is roughly about 3 ½ grounds. Then 1/8 share to each sharer will come to 1050 sq.ft. As such the contention that the suit property, being a small piece of land with building is not partible cannot be accepted. Therefore, this Court comes to the conclusion that the plea made by the plaintiff for partition and separate possession of her 1/8th share in the plaint 'A' schedule property has got to be allowed. Similarly, defendants 5 and 7 , namely S.Vasudevan and Sujatha Sudarsan have also prayed for allotment of their shares in their favour. In the light of the same, this Court comes to the conclusion that the plaintiff and defendants 5 and 7 are entitled to a preliminary decree for partition of plaint 'A' schedule property declaring the share of each one of them to be 1/8th and directing division of the suit 'A' schedule property into 8 equal shares and allotment of one such share to each one of the defendants 5 and 7 and the plaintiff and to put them in separate possession of the respective shares allotted to them. 18. Plaint 'B' schedule contains the following description of properties: Schedule – B Silver Gms Mgs “TAMIL” GOLD “TAMIL” 19. 18. Plaint 'B' schedule contains the following description of properties: Schedule – B Silver Gms Mgs “TAMIL” GOLD “TAMIL” 19. The plaint 'B' schedule contains 46 items of silver vessels and 23 items of gold jewels , some of them with precious stones like diamond etc., The said silver vessels and the jewels, admittedly belonged to Kalyani, the mother of the plaintiff and the defendants. It is admitted that she died intestate on 01.10.2003. As such plaintiff and the defendants 1 to 7 became equally entitled to the said properties described in plaint 'B' schedule. The plaintiff filed the suit for dividing the said silver articles and gold jewels also into 8 equal shares and giving her one such share. The said articles at the time of filing of the suit was admittedly with the first defendant. Subsequently, it seems by virtue of an interim order passed by this Court, there was a settlement and some of the items were handed over to the plaintiff towards her share in the plaint 'B' schedule property. The plaintiff has also filed a memo enclosing a list of the silver vessels and gold ornaments received by her towards her share. Item No.13, 15, 22 in the list of silver vessels found in plaint schedule and Item Nos 8, 7,14 and 20 found in the list of gold jewels included in plaint 'B' schedule were the silver vessels and the gold ornaments received by the plaintiff towards her share in the plaint 'B' schedule properties. The said memo was filed on 22.12.2005. The plaintiff and the defendants have also expressed satisfaction that the silver vessels and gold jewels handed over to the plaintiff by the first defendant towards her share can be excluded and in the remaining items of 'B' schedule, the parties other than the plaintiff shall be entitled to equal shares. The said memo was filed on 22.12.2005. The plaintiff and the defendants have also expressed satisfaction that the silver vessels and gold jewels handed over to the plaintiff by the first defendant towards her share can be excluded and in the remaining items of 'B' schedule, the parties other than the plaintiff shall be entitled to equal shares. The parties also, across the bar, gave their consent for passing a preliminary decree for partition of the remaining 'B' schedule properties among the defendants 1 to 7; that after such preliminary decree they would themselves work out the modality of dividing the gold jewels and silver articles among themselves and that only in the event of disagreement, they will have to approach the Court for actual division by way of a final decree in respect of the items mentioned in plaint 'B' schedule minus the items already handed over to the plaintiff towards her share. In view of the same, this Court comes to the conclusion that it is just and proper to hold that the plaintiff has got Item Nos.13, 15, 22 in the list of silver vessels and Item Nos 8, 7,14 and 20 found in the list of gold jewels included in plaint 'B' schedule in full quit of her claim and the same has to be recorded. So far as the remaining items of plaint 'B' schedule are concerned, since defendants 5 and 7 have prayed for a preliminary decree in their favour for partition of the plaint 'B' schdeule properties also, there shall be a preliminary decree declaring the entitlement of the defendants 5 and 7 to 1/7th share each in the remaining items of plaint 'B' schedule properties after omitting the items already given to the plaintiff towards her share and directing partition of the said items namely 1 to 12, 14, 16 to 21, 23 – 46 silver vessels and 1 to 6, 9 to 13, 15 to 19 and 21 to 23 gold jewels into 7 equal shares and allotment of one such share to each one of the defendants 5 and 7. 20. In the result, the suit is allowed and a preliminary decree is passed as follows: (i). 20. In the result, the suit is allowed and a preliminary decree is passed as follows: (i). Plaint 'A' schedule property shall be divided into 8 equal shares and one such share shall be allotted to the plaintiff and to each one of defendants 5 and 7 and they shall be put in separate possession of the respective shares allotted to them. (ii). In respect of plaint 'B' schedule properties, items 13, 15, 22 under the heading "Silver" and 8, 7,14 and 20 under the heading "Gold" have already been handed over to the plaintiff and the plaintiff accepted them in full quit of her claim of 1/8th share in the said properties and the defendants also do not have any objection for recording satisfaction of the claim of the plaintiff in respect of plaint 'B' schedule properties. Accordingly, satisfaction of the claim of the plaintiff in respect of the 'B' schedule properties is recorded. (iii). In the plaint 'B' schedule properties, excepting Item Nos. 13, 15, 22 under the heading "Silver" and Item Nos 8, 7,14 and 20 Under the heading "Gold" that were given to the plaintiff in full satisfaction of her claim, the remaining items shall be divided into 7 equal shares and one such share shall be given to the 5th defendant and another share shall be given to the 7th defendant. Upto this stage, the parties shall bear their respective costs of litigation.