IMPORTANT POINTS
(1) There is no prohibition to effect partition otherwise than through an instrument in writing by duly complying with requirement of law – Division may also be effected under a settlement or oral understanding.
(2) Partition of coparcenary property – Factum of division is decided by cumulative effect of all attending circumstances proved by parties – Either previous partition or separate ownership of any property is accepted on evidence placed on record by parties.

JUDGMENT :

S.V.N. BHATTI, J.

1. We have heard learned Senior Counsel Shri A.N. Venugopala Gowda and Counsel Shri P.B. Suresh for the appellant and the respondents, respectively.

2. Plaintiff in OS No. 746 of 1996 City Civil Court, Chennai, is the appellant. OS No. 746 of 1996 was filed for the relief of declaration that the plaintiff with Defendant Nos. 1 and 2 is a coparcener by amended Section 29A of the Hindu Succession Act, 1956 (Tamil Nadu Amendment Act). Therefore, the plaintiff has a right to a one-third share in the suit scheduled property at 24/1, Gomathy Narayanaswamy Road, T-Nagar, Madras-600017. She prayed for an injunction, restraining Defendant Nos. 1 and 2 etc., from disposing of one-third part claimed by the plaintiff to third parties. The plaintiff also prayed for partition and separate possession of one-third in the plaint schedule through a preliminary and a final Decree. The prayers in the plaint are comprehensive enough for declaration, injunction, partition, and separate possession for the plaintiff’s one-third share in the plaint schedule property. To avoid repetitive description of the property, which may arise during and in the course of consideration by us, we excerpt the schedule as under:

Plaint Schedule

“Outhouse with ground floor and first floor and ground land of a total extent of 111/3 ground (one ground and 800 sq. ft) forming part of Old No. 62 Gomathy Narayanaswamy road and now in New No. 24/1, Gomathy Narayanaswamy Road, T. Nagar, Madras-17 within the regn. District of Madras-Chingleput Sub Registration District of T.Nagar, bearing S.No. 59 part T.S. No. 8623 (part) bounded on the North by G.N. Chetty Road and U. Sripathi Rao's property on the south by house which belongs to Dr. Harischand, on the east by house in Boag Road, No. 20, belonging to Nayudamma and No. 21 belonging to B.A. Kukillaya and Sripathi Rao's property and on the west by common entrance from Gomathy Narayanaswamy Road.”

3. Defendants 1 and 2 are the father and brother of the plaintiff. The third Defendant is the purchaser of the plaint schedule property from Defendants 1 and 2 through the process of law. The following chronology reveals the narrow brief controversy at issue.

4. The plaintiff’s case is that the grandfather of the plaintiff Dr H. Venkat Rao purchased the plaint schedule property together with the property on the southern side of the plaint schedule property through a registered sale deed dated 13.09.1924. The first defendant is the only son of Dr H. Venkat Rao and, being so, inherited the property as Joint Hindu Family Property. The second defendant is the son of the first defendant, and the plaintiff is one of the daughters of the first defendant. The admitted circumstances are that on 18.07.1974, the first defendant and the second defendant entered into an agreement of sale with the third defendant. The third defendant, enforcing the rights under the agreement dated 18.07.1974, filed OS No. 2595 of 1981 before the City Civil Court, Madras, for specific performance. On 11.08.1982, OS No. 2595 of 1981 was dismissed. The third defendant, aggrieved by the Judgment and Decree dated 11.08.1982, filed Appeal No. 165 of 1984 before the High Court of Judicature at Madras. On 13.03.1995, Appeal No. 165 of 1984 was allowed and specific performance of agreement of sale dated 18.07.1974 was granted by the High Court of Judicature at Madras.

SLP (C) No. 10689 of 1995 filed by Defendants 1 and 2 was dismissed on 12.05.1995. In the interregnum and viz., the plaintiff, Defendants 1 and 2 and the other sisters entered into a partial partition (Exhibit-A3) dated 24.02.1980. What is essential is that Exhibit A3 describes the property covered by the said Door Number; the partial division orpartition was effected for the property on the southern side, leaving open space for ingress and egress. On 25.03.1989, Section 29A of the Hindu Succession Act (Tamil Nadu Amendment Act), 1989confers on the unmarried daughters the status of coparce