J U D G M E N T

The plaintiff has come up with the above suit seeking for a direction (a) to pass a preliminary decree for partition declaring the plaintiff's 1/4th share in the property bearing Old No.10, New No.27, Rackiappa Mudali Street, Mylapore, Chennai - 600 004 b) to direct the defendant to pay past mesne profits @ Rs.3,60,000/- c) to direct the defendant to pay Rs.15,000/- per month, from the date of suit till passing the preliminary decree and thereafter at the same rate till the passing of a final decree.

d) to direct the defendant to pay the costs of the suit.

2. The brief facts of the plaint are as follows:

The plaintiff and the defendant are brothers. The property bearing Old No.10, New No.27, Rackiappa Mudali Street, Mylapore, Chennai - 600 004, is originally belonged to the grandfather of the plaintiff and the defendant, namely Mr.R. Selvaperumal Mudaliar, who died intestate leaving behind his only son, S. Balakrishnan, who is the father of the parties herein. Mr. Balakrishnan died on 03.02.1988 and Mrs. Madhana Sundari who is the mother of the parties died on 04.12.2009 leaving behind the plaintiff and the defendant along with B. Nandakumar as their only legal heirs. To take over the plaintiff's share, the defendant herein has agreed to pay a sum of Rs.4,75,000/- to the plaintiff and accordingly, an agreement of release was also prepared on 23.03.1995 having paid an advance amount of Rs.1,50,000/- and agreed to pay the balance amount of Rs.3,25,000/- on or before 30.09.1995 to the plaintiff. However, the defendant failed to make the balance amount as agreed. In the event of default in making the balance amount, the plaintiff has filed the present suit seeking for the partition in the suit property as prayed for in the plaint.

3. The case of the defendant is briefly stated that it was agreed by all the family members that the suit property shall be taken by the defendant along with loans subsisting on the said property during the life time of defendant's father. It was also the wish of the defendant's father that the defendant shall pay a sum of Rs.4,75,000/- to his brothers each namely, the Plaintiff and Nandakumar-D.W.2. The same was agreed by the brothers of the defendant herein. Accordingly, the agreement of release dated 23.03.1995 was executed between the plaintiff and the defendant. However, even if the advance amount for a sum of Rs.1,00,000/- was paid to the plaintiff, due to debts and business loss, the defendant could not make the balance payment of a sum of Rs.3,25,000/- to the plaintiff on the stipulated period. At the same time, the plaintiff also refused to receive the balance amount on some pretext when the defendant tried to pay the balance payment and demanded to pay huge amount as per the prevailing market value. Further, there is no rental income from the suit schedule property. Hence, the present suit for partition is not maintainable and liable to be dismissed.

4. By order dated 09.03.2016, this Court framed the following issues for consideration in this suit:

(i) Whether the case of the defendant that under an oral partition and family arrangement, the suit property was allotted to the defendant, true and valid?

(ii) Whether the agreement of release dated 23.03.1995 is valid and enforceable against the plaintiff?

(iii) Whether the plaintiff is entitled to a preliminary decree declaring his 1/4th share in the suit property?

(iv) Whether the plaintiff is entitled to mesne profits and if so, at what rate? and (iv) to what other reliefs are the parties entitled to?

5. On the side of the plaintiff, the plaintiff examined as P.W1 and on the side of the defendant, the defendant was examined as D.W.1 and another brother of both parties Mr. B. Nanda Kumar was examined as D.W.2.

6. Heard the learned counsel for the plaintiff and the learned counsel for the defendant as well as perused the material placed on records.

Issue Nos.1 to 4:

7. The learned counsel for the plaintiff would submit that there was a negotiat