A defendant can seek separation of his share of the properties after the passing of the preliminary decree, as long as the final decree proceedings are pending.

The Order of the Court was as follows :

This application has been filed by the applicants/defendants under Order XIV, Rule 8 of Original Side Rules read with Sections 151 and 152 of C.P.C. praying this Court to pass an order amending the preliminary decree dated 22-1-1999 passed in C.S. No. 214 of 1996 declaring that the applicants/defendants would be entitled to 82.502% in the Plaint Schedule Properties and for further directing the office to amend the preliminary decree by including a clause for directing the plaintiffs to render a true and proper account for the rental income from the suit properties and on ascertainment of the same, direct the respondents/plaintiffs to pay the applicants/defendants their share of the rental income.

2. This application is resisted through the counter-affidavit filed by the respondents/plaintiffs.

3. On the basis of the grounds mentioned, Mr. T. V. Ramanujam, the learned Senior Counsel appearing for the applicants/defendants and Mr. R. Thiagarajan, learned counsel appearing for the respondents plaintiffs argued the matter at length and made their respective pleas.

4. I have given my anxious consideration to the rival contentions and carefully perused the affidavits of the parties and other records.

5. The respondents/plaintiffs filed C.S. No. 214 of 1996 claiming for partition and separate possession of the suit schedule properties bearing Door Nos. 6 and 15, Meeran Sahib Street, Chennai in respect of their 17, 498% shares in the suit properties.

6. After recording the evidence and after hearing the parties, this Court by judgment and decree dated 22-1-99 granted preliminary decree for partition and separate possession of the suit schedule properties in respect of the plaintiffs' share of 17.498% in the same.

7. The applicants/defendants being the majority of the shareholders would be entitled to 82/502% shares in the suit properties. The applicants filed Application No. 2052/99 for passing a final decree in consonance with the preliminary decree, allotting the plaintiffs' share of 17-498%. Since the applicants/defendants have not paid the requisite Court-fee for allocation of the balance share and declaration of their entitlement of 82/502% in the suit properties and for rendition of accounts along with the written statement, they have now filed this application to amend the preliminary decree, earlier passed, to the effect that the applicants/defendants would be entitled to the balance share, namely, 82.502% and for rendition of accounts in respect of the said share.

8. Along with this application, the applicants/defendants paid the Court-fee under Sections 37(3) and 35 of Tamil Nadu Court-fees and Suits Valuation Act, 1955 (Rs. 150 + Rs. 750 = Rs. 900).

9. According to the learned Senior Counsel appearing for the applicants, if the respondents' share is divided in consonance with the preliminary decree, automatically, the applicants/defendants share would remain divided, as they are entitled to the balance share, namely, 82.502% in the suit properties and under those circumstances, it will be in the interests of justice to amend the preliminary decree declaring their shares also, especially when the shares of the applicants were admitted and the shares of the respondent had already been determined.

10. Opposing the above submission, Mr. R. Thiagarajan, learned counsel appearing for the respondents/plaintiffs would contend that this application seeking for declaration of applicants' rights and entitlement in the suit schedule properties, without there being proper adjudication, is not maintainable in law or on facts.

11. Learned counsel for the respondents/plaintiffs would also contend that the applicants, who are not in joint possession, have to necessarily file separate applications for passing a decree for partition in their favour and the relief cannot be clubbed by all the applicants, since each one has a separate right and that the rights of the parties have to be adjudicated indepe