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2017 Supreme(Mad) 325
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
Rangarajammal - Plaintiff
Vs.
Sridharan & Ors. - Defendants
C.S.No.545 of 2011
Decided On : 17-03-2017
For the Plaintiff : Mr. D. Rajagopal.
For the Defendants : Mr. M.V. Venkatasheshan for M/s.Gajalakshmi Rajendran.
Headnote:
Partition - Property Dispute - Will - 26.04.1984 - [ENTITLED TO SHARE THE SUIT PROPERTY, POSSESSION AND ENJOYMENT, UNAUTHORIZED CONSTRUCTION, MESNE PROFITS] - [Succession Act, 1925 - Section 63, Transfer of Property Act, 1882 - Section 6, Civil Procedure Code, 1908 - Order 20 Rule 18] - The court held that the plaintiff is entitled to claim 1/2 share in the suit property and mesne profits in respect of her 1/2 share. The plaintiff is entitled to claim partition and separate possession of 1/2 share in the suit property and mesne profits. The determination of mesne profits is relegated to final decree proceedings. A preliminary decree is granted in favor of the plaintiff.
Fact of the Case:
The suit involved a dispute over the partition of a property bequeathed in a Will dated 26.04.1984. The plaintiff and the first defendant, who were beneficiaries under the Will, had jointly promoted and sold three flats in the property. The plaintiff sought partition and claimed entitlement to a share in the property and rental income. The first defendant contested the suit, claiming exclusive rights over certain portions of the property and denying the plaintiff's entitlement to partition and profits.
Finding of the Court:
The court found that both the plaintiff and the first defendant had joint rights in the property bequeathed to them under the Will. It held that the plaintiff was entitled to 1/2 share in the suit property and mesne profits. The court also determined that the first defendant's construction was unauthorized and that the plaintiff was entitled to seek partition and separate possession of her 1/2 share in the property.
Issues: The issues included the plaintiff's entitlement to share the property, possession and enjoyment of the property, unauthorized construction by the first defendant, entitlement to mesne profits, and other relief the plaintiff was entitled to.
Ratio Decidendi: The court relied on the Will dated 26.04.1984 and the provisions of the Succession Act, 1925 and the Transfer of Property Act, 1882 to determine the rights of the parties in the suit property. It interpreted the Will and the joint promotion and sale of flats by the plaintiff and the first defendant as evidence of their joint rights in the property. The court also considered the lack of clear evidence supporting the first defendant's exclusive claim over certain portions of the property.
Final Decision: The court granted a preliminary decree in favor of the plaintiff, entitling her to 1/2 share in the suit property and mesne profits. The determination of mesne profits was relegated to final decree proceedings.
The suit for partition.
2. The averments contained in the plaint are briefly stated as follows:
The first defendant is the brother of the plaintiff's husband and the second defendant is the tenant in one portion in the ground floor of the suit property under the first defendant. The suit property is the land and building bearing Door No.153, Dr. Besant Road, Triplicane, Chennai, measuring 2406 sq.feet consisting of ground. The suit property and the other properties were originally owned by the mother-in-law of the plaintiff and the mother of the first defendant namely Chellammal and during her life time, Chellammal had executed a registered Will dated 26.04.1984 and bequeathed land and building measuring 1645 sq. feet out of 4056 sq.ft within specific boundaries in Door No.153, Dr Besant Road, Triplicane, Chennai-005, in favour of her grandson Sadagopan and had bequeathed the remaining land and building of an extent of 3011 sq.feet in the above mentioned property in favour of the plaintiff and the first defendant to share the same jointly and equally. The testator died on 28.05.1984 and the Will executed by her dated 26.04.1984 was acted upon. In O.P.No.66 of 1987, the Will was duly probate by the order dated 26.02.1987 and insofar as the property bequeathed to the plaintiff and the first defendant, no partition has taken place till date between the plaintiff and the first defendant. The plaintiff and the first defendant have jointly under three separate registered sale deeds dated 10.03.1994 have sold three flats of separate portions in the first floor of the above mentioned property in favour of M.P. Narasimman, Hemamalini and Indira conveying each flat measuring 762 sq.ft, 865 sq.ft and 893 sq.feet with undivided share in the land measuring 318 sq.feet, 361 sq.feet and 373 sq.feet respectively. The plaintiff and the first defendant have also jointly reserved their right in respect of any construction in the second floor in the above mentioned property. The aforementioned three persons have released an extent of about 300 sq.feet in the total extent of undivided share sold to them in the year 1996 and thus the suit property measuring 2406 sq.feet of land and building with specific boundaries and 605 sq.feet set back area is belonging to the plaintiff and the first defendant jointly, which is exclusive of the land and building sold by the plaintiff and the first defendant in favour of the above mentioned three persons in the first floor. Till date, no partition has taken place in respect of the suit property between the plaintiff and the first defendant. While so, the first defendant had started putting up unauthorized construction in the vacant land measuring about 300 sq ft. However, the first defendant is not entitled to do so. The first defendant has also let out a portion measuring 483 sq. feet built up area in the year 1994 to a tenant and receiving rent and the first defendant has recently let out the above portion to the second defendant and the second defendant is paying monthly rent of Rs.6500/- to the first defendant and the plaintiff is entitled to equal share out of the rent paid to the first defendant by the second defendant and sofar as the first defendant has not shared any rental income with the plaintiff. As per the Will dated 26.04.1984, the plaintiff is entitled to equal share in the suit property alongwith a share in the rental income, which the first defendant is realizing from the suit property. The plaintiff issued a legal notice dated 07.01.2011 to the defendants demanding equal partition. The defendants sent a reply dated 29.01.2011 containing false and untenable allegations. The plaintiff has not made any encroachment as alleged in the reply notice. The plaintiff has shared the payments towards property tax, water tax and paying sum through the first defendant. Inasmuch as the first defendant did not come forward to effect partition as claimed by the plaintiff, the plaintiff has been necessi
