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2022 Supreme(Mad) 2901
IN THE HIGH COURT OF JUDICATURE AT MADRAS
KRISHNAN RAMASAMY, J.
Kalavathy & Another - Appellant
Versus
B. Kabaleeswaran & Others - Respondent
C.S. No. 504 of 2022 & A. Nos. 54 & 55 of 2020 & A. Nos. 2867 & 2974 of 2022
Decided On : 17-08-2022
For the Petitioners:L. Kishorem, Advocate. For the Respondents:R1, S. Bharahtha Ambethkar, R2 & R4, P.B. Balaji, R3, Adithya Suresh, R6, S. Thirumavalavan, Advocates.
The court's decision was based on the agreement for partition and the appointment of an Advocate Commissioner to oversee the division of properties.
Headnote:
Partition - Civil Procedure - Code of Civil Procedure, 1908 - Order 24 Rule 1, Order VII Rule 1
Fact of the Case:
The plaintiffs filed a civil suit for partition of properties left by their deceased parents, seeking specific shares in the properties.
Finding of the Court:
The defendants agreed to the partition as per the memo filed, and the court granted a preliminary decree for partition. An Advocate Commissioner was appointed to inspect the properties and effect the division as per the agreed shares.
Issues: Dispute over the partition of properties left by deceased parents, disagreement on the allocation of shares among the plaintiffs and defendants.
Ratio Decidendi: The court relied on the agreement between the parties for partition and the appointment of an Advocate Commissioner to oversee the division of properties.
Final Decision: The court granted a preliminary decree for partition and appointed an Advocate Commissioner to oversee the division of properties as per the agreed shares.
JUDGMENT
(Prayer: Plaint filed under Order 24 Rule 1 of O.S Rules read with Order VII Rule 1 of the Code of Civil Procedure, 1908 praying for:
(a) Directing the defendants to Partition the suit ‘A’ schedule of property into eight equal shares, by metes and bounds and allot one such share (1/8th share) to each of the Plaintiffs the defendants 2 to 6 and one share for the plaintiffs mother deceased Mrs.B.Neelambal, Partition the suit ‘B’ schedule of property (being the 1/8th share of the Plaintiffs mother Mrs.B.Neelambal) by metes and bounds into seven equal shares, and allot one such share (1/7th share) to each of the Plaintiffs and the defendants 1 to 5, Partition the suit ‘C’ schedule of property by metes and bounds into seven equal shares, and allot one such share (1/7th share) to each of the Plaintiffs and the defendants 1 to 5, absolutely.
(b) Granting permanent injunction restraining the defendants, their men, agents and subordinates from in any way alienating or encumbering the suit Schedule of properties.
(c) Directing the defendants to pay the costs of the suit,)
1. The present Civil Suit has been filed by the plaintiff for the following relief:
(a) Directing the defendants to Partition the suit ‘A’ schedule of property into eight equal shares, by metes and bounds and allot one such share (1/8th share) to each of the Plaintiffs the defendants 2 to 6 and one share for the plaintiffs mother deceased Mrs.B.Neelambal, Partition the suit ‘B’ schedule of property (being the 1/8th share of the Plaintiffs mother Mrs.B.Neelambal) by metes and bounds into seven equal shares, and allot one such share (1/7th share) to each of the Plaintiffs and the defendants 1 to 5, Partition the suit ‘C’ schedule of property by metes and bounds into seven equal shares, and allot one such share (1/7th share) to each of the Plaintiffs and the defendants 1 to 5, absolutely.
(b) Granting permanent injunction restraining the defendants, their men, agents and subordinates from in any way alienating or encumbering the suit Schedule of properties.
(c) Directing the defendants to pay the costs of the suit,
2. The learned counsel appearing for the plaintiffs would submit that the plaintiffs and the defendants 1 to 5 are the children of deceased C.Balaraman and the suit has been filed for partition. According to the plaintiffs, the plaintiffs are entitled for 1/8th share each in the 'A' schedule property and 1/7th share each in the Schedule 'B' and 'C' properties. The 1st defendant has already sold his undivided 1/8th share to the husband of the 6th defendant. Though the plaintiffs called upon the defendants 1 to 5 several times to partition the suit schedule properties and allot the shares to the plaintiffs, they have been evading to do so. Hence, without any other option, the plaintiffs have filed the present suit.
3. When the matter came up for hearing on 31.01.2022, since there was no representation on behalf of the 3rd defendant, he was set ex-parte and on the same day all the other defendants jointly submitted that they are agreeable for the compromise. Thereafter, the 3rd defendant moved an application to set aside the ex-parte order and the same was allowed on 14.06.2022 and the parties are directed to file their draft issues.
4. Today i.e 17.08.2022, when the matter is taken up for hearing, the defendants 2, 4 filed a memo dated 31.07.2022, stating as follows:
“The above suit is one for partition. The plaintiffs 1 & 2 and 5th defendant are daughter and defendants 1 to 4 are sons of C.Balaraman and Neelamabal. Parents of the parties died intestate and the following properties were left behind on the time of their death namely,
* The Suit Schedule 'A' property is Vijaya Theatre Property;
* The Suit Schedule 'C' property is a residential flat with a plinth area of 936 q.ft with an undivided share (UDS) of 809.4 sq.ft;
* In the plaint the share of the mother, the said Mrs.Neelambal, has been shown as 1/8th undi
