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2012 DIGILAW 189 (MAD)

Thangavel v. R. Balasubramaniam

2012-01-10

G.RAJASURIA

body2012
Judgment :- 1. The defendant in the suit filed this appeal as against the judgement and decree dated 25.8.2008 passed by the learned Additional District Judge cum Fast Track Court No.5, Coimbator, in O.S.No.618 of 2007, which was filed by the respondent/plaintiff for partition. 2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court. 3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus: (i) The respondent/plaintiff filed the suit for partition with the following prayer: "a) to direct the division of the suit properties into 2 equal shares and allots one share to the plaintiff and put him in separate possession with metes and bounds. b) to appoint a Court Commissioner to divide the suit properties my metes and bounds into 2 equal shares and allot one such share to the plaintiff and put him in separate possession thereof." onthe main ground that one Nanjammal-the mother of plaintiff and defendant executed a Will bequeathing the suit properties in favour of both of them to take them in equal shares. Since there was no amicable partition between the parties, the suit was filed by the plaintiff seeking partition. (ii) The defendant resisted the suit on the main grounds that there is one other litigation pending relating to an encroachment made by a neighbour in the private lane belonging to the parties herein; that the suit house is not capable of partition, as it is a compact house and that as per the recitals in the Will the properties should be enjoyed jointly. (iii) Whereupon issues were framed by the trial Court. (iv) During trial, the plaintiff examined himself as P.W.1 and Exs.A1 to A9 were marked. On the defendants side, the defendant examined himself as D.W.1 and marked Ex.B1. (v) Ultimately, the trial Court decreed the suit passing a preliminary decree allotting half share in favour of the plaintiff and the other half share in favour of the defendant. 4. Being aggrieved by and dis-satisfied with the judgement and preliminary decree of the trial Court, this appeal has been filed reiterating the grounds as found set out in the written statement of the defendant. 5. Heard both sides. 6. 4. Being aggrieved by and dis-satisfied with the judgement and preliminary decree of the trial Court, this appeal has been filed reiterating the grounds as found set out in the written statement of the defendant. 5. Heard both sides. 6. The point for consideration is as to whether the trial Court was justified in ignoring the aforesaid three points pleaded by the defendant as against partition? 7. The trial Court, considering the pro et contra held that the mere pendency of one other appeal relating to the said lane dispute is not an embargo for seeking partition. Trite the proposition of law is, that simply because the plaintiff and the defendant herein joined together and filed a suit as against a third party, challenging and impugning the alleged encroachment made by the third party in their private lane, there is no embargo that the plaintiff herein should not seek for partition as against his brother. As such, the contention of the appellant/defendant is totally baseless. 8. The contention of the defendant that the suit property is a compact house, which cannot be divided by metes and bounds is a matter to be considered at the time of final decree stage. It is quite obvious and axiomatic that the Partition Act provides reliefs in a case where the house cannot be fruitfully divided among brothers and it is for the parties to work out their remedy in the manner know to law, invoking the appropriate provisions of the Partition Act, if at all any one of the parties to the lis feels that the house could not be divided fruitfully and meaningfully. As such, the trial Court correctly rejected that plea of the defendant also. 9. The perpetual joint enjoyment of the house by the legatees, as per the Will, is precisely the contention of the defendant, which failed to carry conviction with the Court, for the reason that ad nauseam and ad infinitum both parties cannot be expected to enjoy the house jointly. Simply because, the recital in the Will would contemplate that they should enjoy jointly, that it does not mean that they should not get the property partitioned. 10. In short, all the aforesaid three contentions of the defendant are nothing but a load of baloney fraught with illogical statements, which cannot be countenanced and upheld by the Court. Simply because, the recital in the Will would contemplate that they should enjoy jointly, that it does not mean that they should not get the property partitioned. 10. In short, all the aforesaid three contentions of the defendant are nothing but a load of baloney fraught with illogical statements, which cannot be countenanced and upheld by the Court. As such, I could see no merit in this appeal. Accordingly, the appeal stands dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petition is dismissed.