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2017 Supreme(Mad) 3915
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
C.V. KARTHIKEYAN, J.
R.Rajaraman - Appellant
Versus
R.Surendran and Ors. - Respondents
AS(MD)No.32 of 2000 & MP(MD)No.2 of 2015
Decided on : 10-11-2017
Advocate Appeared:
For the Appellant : Mr.M.S.Balasubramania Iyer
For the Respondent: Mr.M.Sriram, Mr.R.Devaraj, Mr.V.Balaji.
Headnote:
Registration Act – Section 17 – Civil Procedure Code, 1908 – Order 32 rule 15, Order 41 Rule 27 – Partition – Appeal has been filed, against the judgment and decree, by the Principal Sub Judge, Trichy, dismissing the said suit – Appellant herein was the Plaintiff in OS. – Said suit had been filed, seeking partition of A-Schedule property into four equal shares and allotment of 1/4th share to the Plaintiff and for rendition of accounts from 1972 and to ascertain the Plaintiffs 1/4th share – Held, Appellant had established that as a son of R.L.Rangachari, he is entitled to 1/4th undivided share under the Will executed by R.L.Rangachari, which was marked as Ex.A1 – It is for the Respondents to come forward to speak about the release deed and for that they must have approached the court, seeking part performance and compulsory registration of the release deeds – Respondents have waited in eternity for the Appellant to institute the suit. – It is also seen that the release deeds are dated 2.2.1979 and 4.2.1980 respectively. – The suit by the Appellant, herein was instituted on 21.1.1987. For nearly seven years, the Respondents have not taken any steps to seek part performance of the agreement. They have kept quiet and the court cannot come to their rescue. – In these circumstances, Court hold that this court has to necessarily interfere and reverse the impugned judgment of the Trial Court. – Appeal Suit Allowed
1. This appeal has been filed, against the judgment and decree, dated 14.7.1999 in OS.No.37 of 1987, by the Principal Sub Judge, Trichy, dismissing the said suit.
2. The Appellant herein was the Plaintiff in OS.No.37 of 1987. The said suit had been filed, seeking partition of A-Schedule property into four equal shares and allotment of 1/4th share to the Plaintiff and for rendition of accounts from 1972 and to ascertain the Plaintiff's 1/4th share.
3. A-Schedule property was at Old Door No.51-78, New Door No.55, Town Survey Nos.2867 and 2875, Block No.19, Ward No.6, Trichy Fort, Rani Street, Trichy and Door Nos.213, 214 and 215 in Town Survey No.2877 and 2876, Big Bazaar Street, Trichy Fort, Trichy.
4. The Plaintiff claimed 1/4th undivided share in the said properties. The Plaintiff is the son of R.L.Rangachari. The 1st, 2nd and 3rd Defendants are also sons of R.L.Rangachari and brothers of the Plaintiff. R.L.Rangachari was a business man and he had established several establishments and he did businesses under the name and style of Chary Sons (Money lending), Chary Enterprises and SLV. Corporation (paper, Stationery) at Trichy. He also purchased the properties with his own funds. They were his self acquired properties. He was in possession and enjoyment of the properties as owner. His wife predeceased. He died in 1972.
5. It has been stated that R.L.Rangachari died, leaving behind him four sons, namely, the Plaintiff and the 1st to 3rd Defendants and he also had four daughters, who were not parties to the suit. He left behind a Will dated 27.12.1971. It was executed when he was in a sound state of mind. It was executed, attested and registered in accordance with law. It came into force after his death. In terms of the said Will, the properties in A-Schedule were bequeathed to all the sons, namely, the Plaintiff and the 1st to 3rd Defendants to be divided by them equally. After his death, all the four sons purchased Door Nos.214-215 in Big Bazaar Street, Trichy, in their joint names. They put up new construction annexing the properties purchased with that of A-Schedule. The Plaintiff commenced new business in 1976 and has been having his own separate business. The 1st to 3rd Defendants are also doing separate business. After the death of R.L.Rangachari, the 1st Defendant, as eldest brother, has been managing the Printing Press and Stationery business, shown in the B-Schedule in the Will. The Printing Press was in a rented premises. The premises was vacated in 1974 by the 1st Defendant after receiving goodwill from the landlord and the business was run by the 1st Defendant himself. In 1976, the 1st Defendant sold the machineries, types, dhalavadasamans, etc. for two lakhs, but he did not pay any amount to the Plaintiff.
6. It has been stated that the 1st to 3rd Defendants had incurred loans in their respective business. The Plaintiffs claimed that he was not bound by the said loans. Thereafter, the 1st to 3rd Defendants made the Plaintiff to execute certain documents. They did not act and fulfil the promises made. The Plaintiff therefore withdrew his act. According to the will, the Plaintiff is entitled to 1/4th share in the Plaintiff Schedule properties. He is in joint possession. It has been stated that the 1st to 3rd Defendants had been receiving income from the rent collections for which they will have to render accounts. The Plaintiff is also entitled to 1/4th share of the income derived. It has been further stated that the 1st Defendant received the jewels of the wife of the Plaintiff weighing 15 sovereigns and pledged them for their benefit and a sum of Rs.5000 was received by the 1st Defendant from the Plaintiff. The 1st Defendant had not given any account with respect to the same. The 1st Defendant also sold the family car, motorcycle and has not given any accounts. It has been stated that the 4th, 5th and 6th Defendants are the tenants in the A-Schedule items (1) and (2). The rents given by them are being collect
