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2022 DIGILAW 2771 (MAD)

Kalavathy v. B. Kabaleeswaran

2022-08-17

KRISHNAN RAMASAMY

body2022
JUDGMENT (Prayer: Plaint filed under Order 24 Rule 1 of O.S Rules read with Order VII Rule 1 of the Code of Civil Procedure, 1908 praying for: (a) Directing the defendants to Partition the suit ‘A’ schedule of property into eight equal shares, by metes and bounds and allot one such share (1/8th share) to each of the Plaintiffs the defendants 2 to 6 and one share for the plaintiffs mother deceased Mrs.B.Neelambal, Partition the suit ‘B’ schedule of property (being the 1/8th share of the Plaintiffs mother Mrs.B.Neelambal) by metes and bounds into seven equal shares, and allot one such share (1/7th share) to each of the Plaintiffs and the defendants 1 to 5, Partition the suit ‘C’ schedule of property by metes and bounds into seven equal shares, and allot one such share (1/7th share) to each of the Plaintiffs and the defendants 1 to 5, absolutely. (b) Granting permanent injunction restraining the defendants, their men, agents and subordinates from in any way alienating or encumbering the suit Schedule of properties. (c) Directing the defendants to pay the costs of the suit,) 1. The present Civil Suit has been filed by the plaintiff for the following relief: (a) Directing the defendants to Partition the suit ‘A’ schedule of property into eight equal shares, by metes and bounds and allot one such share (1/8th share) to each of the Plaintiffs the defendants 2 to 6 and one share for the plaintiffs mother deceased Mrs.B.Neelambal, Partition the suit ‘B’ schedule of property (being the 1/8th share of the Plaintiffs mother Mrs.B.Neelambal) by metes and bounds into seven equal shares, and allot one such share (1/7th share) to each of the Plaintiffs and the defendants 1 to 5, Partition the suit ‘C’ schedule of property by metes and bounds into seven equal shares, and allot one such share (1/7th share) to each of the Plaintiffs and the defendants 1 to 5, absolutely. (b) Granting permanent injunction restraining the defendants, their men, agents and subordinates from in any way alienating or encumbering the suit Schedule of properties. (c) Directing the defendants to pay the costs of the suit, 2. The learned counsel appearing for the plaintiffs would submit that the plaintiffs and the defendants 1 to 5 are the children of deceased C.Balaraman and the suit has been filed for partition. (c) Directing the defendants to pay the costs of the suit, 2. The learned counsel appearing for the plaintiffs would submit that the plaintiffs and the defendants 1 to 5 are the children of deceased C.Balaraman and the suit has been filed for partition. According to the plaintiffs, the plaintiffs are entitled for 1/8th share each in the 'A' schedule property and 1/7th share each in the Schedule 'B' and 'C' properties. The 1st defendant has already sold his undivided 1/8th share to the husband of the 6th defendant. Though the plaintiffs called upon the defendants 1 to 5 several times to partition the suit schedule properties and allot the shares to the plaintiffs, they have been evading to do so. Hence, without any other option, the plaintiffs have filed the present suit. 3. When the matter came up for hearing on 31.01.2022, since there was no representation on behalf of the 3rd defendant, he was set ex-parte and on the same day all the other defendants jointly submitted that they are agreeable for the compromise. Thereafter, the 3rd defendant moved an application to set aside the ex-parte order and the same was allowed on 14.06.2022 and the parties are directed to file their draft issues. 4. Today i.e 17.08.2022, when the matter is taken up for hearing, the defendants 2, 4 filed a memo dated 31.07.2022, stating as follows: “The above suit is one for partition. The plaintiffs 1 & 2 and 5th defendant are daughter and defendants 1 to 4 are sons of C.Balaraman and Neelamabal. Parents of the parties died intestate and the following properties were left behind on the time of their death namely, * The Suit Schedule 'A' property is Vijaya Theatre Property; * The Suit Schedule 'C' property is a residential flat with a plinth area of 936 q.ft with an undivided share (UDS) of 809.4 sq.ft; * In the plaint the share of the mother, the said Mrs.Neelambal, has been shown as 1/8th undivided share in 77 cents and set out separetly as suit schedule 'B' property. The 1st defendant during the life of the mother sold his 1/8th share to the 6th defendant's husband (since deceased). SCHEDULE 'A' PROPERTY: The Plaintiffs 1 & 2 are entitled to : 1/7th Share each. (1/8th + 1/56th = 8/56th Share) The 1st Defendant is entitled to : 1/56th Share. The 1st defendant during the life of the mother sold his 1/8th share to the 6th defendant's husband (since deceased). SCHEDULE 'A' PROPERTY: The Plaintiffs 1 & 2 are entitled to : 1/7th Share each. (1/8th + 1/56th = 8/56th Share) The 1st Defendant is entitled to : 1/56th Share. (Since he has already sold his 1/8th share). The Defendants 2 to 5 are entitled to : 1/7th Share each. (1/8th + 1/56th = 8/56th Share). The 6th Defendant is entitled to : 1/8th Share (having purchased the same from the 1st Defendant). SCHEDULE 'C’ PROPERTY: Both Plaintiffs 1 & 2 and Defendants 1 to 5 are entitled to: 1/7th each.” 5. The learned counsel appearing for the plaintiffs and other defendants also agreed for the partition as mentioned in the memo filed by the defendants 2 and 4. They would further submit that both the plaintiffs and the defendants have filed the relevant Court fee in respect of their respective shares. 6. Accordingly, the preliminary decree is granted in terms of the memo dated 31.07.2022, filed by the defendants 2 & 4 and the same shall form part of the decree. 7. Mr.Muthusamy, Senior Advocate is appointed as an Advocate Commissioner to inspect the suit schedule properties and effect division of the same by metes and bounds and allot respective shares to the plaintiffs and the defendants 1 to 5 as mentioned in the memo filed by the defendants 2 & 4. The remuneration of the learned Advocate Commissioner is fixed at Rs.1,50,000 to be paid by the plaintiffs forthwith, on receiving the intimation from the Advocate Commissioner of his/her assignment. Before such inspection, the learned Advocate Commissioner shall give due notice to the parties and take such steps to effect division as directed above. 8. The learned Advocate Commissioner is directed to find out the interest of the parties whoever willing to refund the amount paid by the lessee Mr.V.Jayakumar and file his report on or before 19.09.2022.