Claim for partition by female heirs postponed until male heirs choose to divide the same.

After hearing both counsel on 05.12.2003, we have reserved the Appeal for judgment. During discussion on 09.12.2003, we have differed in our views and there was difference of opinion between us in the matter. Therefore, I have rendered my separate judgment giving reasonings after settingforth the pleadings and findings of the trial court and also the contentions of the parties.

In this Appeal, I have also received two additional documents in CMP No.10477/2003 as additional documents (Exs.B-10 and B-11) for the reasons set forth infra in the judgment.

Per Mrs. R.Banumathi, J.

This Appeal arises out of judgment and decree of VII Additional Judge, City Civil Court, Chennai in O.S.3053/1998 dated 24.04.2002. Plaintiff is the Appellant. D2 and D5 have preferred the Cross Objection.

2. The Appeal arises on these common grounds;-

The dispute relating to Suit Properties:-

'A' Schedule - residential house at No.19, Mandaveli;

'B' Schedule - a Lodge bearing Door No.9, Nallathambi Mudali Street, Triplicane.

Suit for Partition of 1/4th share of 'A' and 'B' Schedule Property was decreed. However, finding that 'A' schedule Property being the residential house, under Section 23 of Hindu Succession Act, the trial court postponed Plaintiff's claim of Partition.

3. The parties are related as under:-

Appasami Mudaliar

(died in 1918)

= Kamalammal(died in 1928)

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Thirunavukkarasu Rathina Sabapathy Mudaliar Mudaliar (died on 18.07.1974)

=Krishnaveni died in 1994

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Kokila Malliga Ramachandran Swathanthira

(married-1958) (married-1967) D1 (daughter)

Plaintiff D3 died on (Spinster)D2

30.10.2000

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Thavamani Abhirami Shanthi

(widow) (daughter)married (daughter)(unmarried)

D4 D5 D6

4. Case of Plaintiff is that Suit Properties are self acquired properties of Plaintiff's father Rathina Sabapathy Mudaliar. After his death, Plaintiff, Defendants and their mother Kamalammal have been in joint possession and enjoyment of the suit Properties. Since the first Defendant was adopting hostile attitude towards the Plaintiff, Plaintiff issued Ex.A-1 Notice to the Defendants calling upon them to effect Partition and separate possession. Since the Defendants have not effected the Partition, Plaintiff has filed the Suit for,-

(i) Partition of 1/4th share and to pass Preliminary Decree and to appoint Commissioner for division of the Properties;

(ii) for determination of future mesne profits to order enquiry under Order XX Rule 12 CPC, and such other reliefs.

5. D1 has filed the Written Statement denying that the Suit Properties are the self acquired properties of Rathina Sabapathy Mudaliar. According to D1, Appasamy Mudaliar - grandfather of the Defendant has executed a registered Will dated 21.10.1918. Appasamy Mudaliar bequeathed two items of Properties (i) No.17, Taylors Road, Kilpauk; and (ii) Door No.36, Hunters Road, Vepery, Chennai. The Properties were bequeathed to the father of the first Defendant and his brother Thirunavukkarasu Mudaliar appointing Kamalammal, their mother as Executrix of the Will. The said Will was probated in O.P.No.274/1919. Later, Rathina Sabapathy Mudaliar and his brother Thirunavukkarasu Mudaliar have divided the Properties amongst themselves under the Partition Deed dated 02.07.1951. The ancestral Property bearing Door No.17, Taylors Road, Kilpauk was sold by the father of D1 in November 1961. That Sale Deed was executed by the father of D1 for himself and onbehalf of D1 - who was then minor. From out of the sale proceeds, Suit Property - Schedule 'B' in Door No.9, Nallathambi Street, Triplicane, which is presently the Mansion, was purchased by D1 under Ex.B-4 Sale Deed.

6. Likewise, the ancestral Property in Door No.36, Hunters Road, Vepery was sold by D1's father Rathina Sabapathy Mudaliar on 29.03.1973 for a sale consideration of Rs.1,05,000/-. On the very same day, utilising part of the sale consi