IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:29.08.2011

CORAM

THE HON'BLE MRS. JUSTICE R.BANUMATHI

and

THE HON'BLE MR. JUSTICE B.RAJENDRAN

O.S.A.No.303 of 2009

and

M.P.Nos.1 & 2 of 2009

D.Selvanayagam(Deceased)

P.Karthikeyan

...

Appellants

Vs.

1.P.Bhuvaneswari

2.P.Shenbagavalli

...

Respondents

Original Side Appeal is filed under Order XXXVI Rule 1 of the

Original Side Rules read with Clause 15 of the Letters Patent against

the decree and judgment dated 27.04.2009 made in C.S.No.215 of 1996

on the file of this Court.

For Appellant

: Mr.AR.L.Sundaresan,

Senior Counsel

for

Mrs.AL.Gandhimathi

For Respondents

: Mr.R.Mukundan

JUDGMENT

R.BANUMATHI,J

Challenge in this appeal is the preliminary decree for partition

passed in C.S.No.215 of 1996 dated 27.04.2009 directing partition of

the suit property and allotting 1/3rd share to each of the

Respondents/Plaintiffs. Unsuccessful, 2^nd Defendant is the Appellant

in this appeal.

2. Suit property is the self acquired property of

A.Parthasarathy who died intestate on 12.11.1975. The genealogy of

A.Parthasarathy is as under:-

https://hcservices.ecourts.gov.in/hcservices/

Parthasarathy

[died on 12.11.1975]

= Selvanayagi [D1]

[died on 04.09.1998]

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Devasenapathy Bhuvaneswari Shenbagavalli Karthikeyan

(died on (P1) (P2) (D2)

07.09.1988)

3. Case of Plaintiffs is that after the death of their father,

Defendants 1 and 2 have been living in the suit property and have

also let out some portion of the property on lease and are

appropriating the rental income to themselves.

Inspite of

Plaintiffs' request for partition of the suit property, Defendants 1

and 2 have evaded their demands and hence, 1^st Plaintiff issued Ex.P1-

legal notice [30.04.1982] to the Appellant/2^nd Defendant not to let

out the suit property or altering the physical features of the suit

property and 2^nd Defendant was reluctant to partition the suit

property. 1^st Plaintiff had also sent Ex.P2 another legal notice

[18.09.1995] demanding for partition of the suit property by metes

and bounds and render accounts of the rental income derived from the

property. Appellant/2^nd Defendant had sent Ex.P3-reply notice

[09.10.1995]. Alleging that Plaintiffs are entitled to 1/4th share,

Respondents/Plaintiffs have filed the suit for partition and separate

possession and also rendition of accounts. During the pendency of

the suit, 1^st Defendant-D.Selvanayaki, mother of Plaintiffs and 2^nd

Defendant died on 04.09.1998 intestate and the Court has also

recorded that Plaintiffs and 2^nd

Defendant are the legal

representatives of the deceased 1^st Defendant.

4. Resisting the suit, 2^nd Defendant filed written statement

adopted by his mother deceased 1^st Defendant. In the written

statement, it is alleged that after the death of his father, 2^nd

Defendant was only looking after his mother and his elder brother

Devasenapathy who was mentally retarded. 2^nd Defendant incurred huge

expenditure towards the medical expenses of his mother till her death

and also meeting the medical expenses of the mentally retarded elder

brother. In the suit property, 2^nd Defendant has constructed two

shops out of his own sources of income in the year 1983 and also

carried out periodical repairs to the said property. 2^nd Defendant

further alleged that the marriage of 1^st Plaintiff-Bhuvaneswari was

performed by his father and the 2^nd Defendant in the year 1975 and

from out of his own income, 2^nd Defendant himself performed the

https://hcservices.ecourts.gov.in/hcservices/

marriage of 2^nd Plaintiff-Shenbagavalli i