The legal heirs of a deceased partner in a partnership property are entitled to a share in the assets of the firm, and the dismissal of a previous suit does not necessarily bar the institution of a new suit.

1. Pending Suit for partition of the Suit schedule property by metes and bounds and for the allotment of 3/4th shares in the said property, the Plaintiffs seek (i) an interim order of injunction restraining the Respondent from alienating or creating any encumbrance on the suit schedule property; and (ii) an interim order of injunction restraining the Respondent from in any manner interfering with the Plaintiff’s peaceful possession and enjoyment of the suit schedule property.

Schedule

All that piece and parcel of land measuring 12.09 grounds comprised in T.S.No.5/1, Block No.09, Situated at Cart Tract Road (Gokulakrishnan Road, renamed as Cart Track Road) Vandikaran Street), bearing New No.15, Old No.51, at Velachery Chennai-32 together with superstructure thereon bounded on the – North by : Cart Track Road

South by : Land comprised in S.Nos.4/1, 6/8 & 6/10 (Residential Flats)

East by : Land comprised in S.No.5/2 comprising of a Private Temple

West by : Land comprised in S.No.3/3 situate within the Sub-Registration District of Velachery and Registration District of Chennai South.

2. Heard Mr. P.M. Subramaniam, learned Counsel for the Applicants/Plaintiffs and Mr. M.L. Ganesh, learned Counsel for the Respondent/Defendant.

3. The case of the Plaintiffs in brief is that M.N. Philip, husband of the First Plaintiff and father of Plaintiffs 2 to 4 entered into a partnership on 1.1.1979 with the Defendant; that it was earlier a proprietary concern run by M.N. Philip; that the capital of the partnership was fixed at Rs.1.00 lac, out of which Rs.40,000/- was contributed by way of cash by M.N. Philip and Rs.60,000/- was contributed by way of the Defendant bringing into the partnership, the suit schedule property owned by him; and that under the deed of partnership, the profits and losses were to be shared between M.N. Philip and the

Defendant in the ratio of 3:1 (75% for M.N. Philip and 25% for the Defendant).

4. It is the further case of the Plaintiffs that M.N. Philip died intestate on 30.1.2002, leaving behind the Plaintiffs as his legal heirs. After the death of M.N. Philip, the Fourth Plaintiff and her husband have been maintaining property by paying all taxes and electricity charges. Without reference to the Plaintiffs, the Defendant attempted to sell the Suit schedule property and the Plaintiffs came to know about it through a public notice that appeared in the Hindu on 27.2.2011 issued by a person claiming to be a proposed purchaser. Therefore, the Plaintiffs issued a legal notice to the person who issued the public notice, apart from publishing a public notice themselves on 5.3.2011. But, another public notice appeared in the Hindu on 6.3.2011, at the instance of the Defendant, which compelled the Plaintiffs to come up with the above Suit.5. In the Counter Affidavit filed by the Respondent, he has raised three substantial issues, viz., -

(i) that the partnership business had come to an end in 1988 itself and that a Suit filed by M.N. Philip in C.S.No.528 of 1993 (Later transferred to the City Civil Court and re-numbered as O.S.No.10024 of 1996) for dissolution of firm, was dismissed for non-prosecution and that therefore, the present Suit praying for similar reliefs is barred by res judicata;

(ii) that inasmuch as the Plaintiffs have come to the Court after nine years of the death of M.N. Philip, claiming a right to partition, their claim is barred by limitation; and

(iii) that by their failure to disclose the litigation that M.N. Philip initiated in 1993, they have come to Court with unclean hands.

6. Apart from the above contentions, Mr. M.L. Ganesh, learned Counsel for the Respondent also raised another contention, in the course of hearing of the Application that what was brought into partnership firm by the Defendant was only a part of the Suit schedule property (viz., 6 grounds out of 12 grounds) and that therefore, the Plaintiffs have no right over the remaining portion of the suit schedule property, other than what w