Advocates:
['M/s King', 'Partridge', '', 'Catholic Centre', 'IInd Floor', 'No', 'Armenian St Ch', 'M/S RUPA J THARAYIL', '', 'JOINT MEMO OF COMPROMISE FILED D NO DT', 'AMENDED PLAINT D NO', 'DT', 'EGMORE', 'CH']

C.S.No.267 of 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 14.06.2022

CORAM

THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY

C.S.No.267 of 2020

and O.A.Nos.486 & 487 of 2020

and A.Nos.3959 of 2021, 2173 & 2174 of 2022

1.John Raji Mammen

2.Philip Roy Mammen

... Plaintiffs

Vs.

1.Thomas Jerry Mammen (deacesed)

2.Ann Reeja Eapen

3.John Britto Chandra Bose

4.Nancy Issac Mammen

5.Vivian Alexandra Mammen

6.Rhea Marie Mammen (minor)

Rep. by Mother and Natural guardian

Nancy Issac Mammen

7.Laila Ann Mammen (minor)

Rep. by Mother and Natural guardian

Nancy Issac Mammen

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C.S.No.267 of 2020

8.Megan Olivia Mammen (minor)

Rep. by Mother and Natural guardian

Nancy Issac Mammen

... Defendants

[Defendants 4 to 8 are impleaded as

the legal heirs of the deceased 1^st

defendant as per the order dated

10.02.2022]

Prayer: Plaint filed under Order VII Rule 1 of Code of Civil Procedure

Read with Order 24 Rule 1 of the Original Side Rules, praying for:

(a) For Partition and separate possession of the

plaintiff's 1/4^th share in the Schedule 'B' mentioned property;

(b) Directing the 1^st defendant to pay past mesne profit

@ Rs.20,000/- p.m from 1998 to 2019 for a total sum of

Rs.49,20,000/- but restricted to three years only i.e for 36

months before the date of plaint for a sum of Rs.7,20,000/-;

(c) Directing the defendants to pay future mesne profit

@ Rs.40,000/- per month, from the date of plaint, till the

division and separate possession of the suit properties;

(d) appoint a commissioner to divide the suit schedule

property by metes and bounds and allot the respective shares

to the plaintiffs;

(e) grant permanent injunction restraining the

defendants from collecting the future rents or to deal with

the property in all means;

(f) award the costs of the suit.

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C.S.No.267 of 2020

For Plaintiffs

: Mr.P.Ranganatha Reddy

for M/s.King and Partridge

For D2, 4 to 8

: Mrs.Rupa J.Tharayil

For D3

: No Appearance

JUDGMENT

The suit has been filed by the plaintiffs, seeking for partition

separate possession of the plaintiff's 1/4^th share in the Schedule 'B'

mentioned property and mesne profits thereof.

2.The matter is taken up for hearing, the learned counsel appearing

on either side submitted that the dispute between the parties has been

settled amicably and a Joint compromise Memo to that effect has been

filed on behalf of both the parties. The said Memo has been duly signed

by both the parties on different dates and attested by their respective

counsel. Since they all are residing at different Countries, the Joint

Memo of Compromise also noterised from the respective Notary Public.

Of their Countries and the original Joint Memo of Compromise is also

filed.

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C.S.No.267 of 2020

3.The learned counsel appearing for both the parties submitted

that, the subject matter is with regard to the division of schedule B

property, i.e four flats situated in schedule A. All the four flats are

divided equally by Plaintiffs 1 & 2 and 2^nd defendant and LR's of D1,

viz., D4 to D8 respectively. Therefore, they submitted that no prejudice

would be caused if any of the parties are not present. Further, they

submitted that since all the parties are residing outside India, their

appearance may be dispensed with.

4.In support of their contention, the learned counsel appearing for

the plaintiff referred to the judgment of Hon'ble Supreme Court reported

in 1992 1 Supreme Court Cases 31 in the case Byram Pestonji

Gariwala vs. Union Bank of India and Others. The relevant portion of

the judgment is reproduced hereunder:

“38.Considering the traditionally recognised role of

counsel in the common law system, and the evil sought to

be remedied by Parliament by the C.P.C (Amendment)

Act, 1976, namely, attainment of certainty and expeditious