In a property partition suit, the court noted mutual consent between the petitioner and the sole appearing respondent regarding the division of shares. Consequently, it framed a preliminary decree declaring respective entitlements without adjudicating detailed factual disputes.
Preliminary decree declaring entitlement of 1/6th share in suit properties
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C.S.No.505 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 07.10.2020
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
C.S.No.505 of 2012
M.Shanthi ... Plaintiff
Vs
1.M.Umashankar
2.M.Thanigaivelu
3.M.Duraibabu
4.R.Thenmozhi
5.M.Banumathi
6.Merit Book House,
Rep. by its Authorised Signatory,
A.P.642, 49th Street, 9th Sector,
K.K.Nagar,
Chennai - 600 078.
... Defendants
Prayer: Suit under Order IV Rule 1 of O.S. Rules of High Court Madras read with Order VII Rule 1 C.P.C., 1908, praying for a judgment and decree against the defendants (a) for partition by metes and bounds of Schedule "A" to Schedule "E" properties and hand over physical vacant possession of the 1/6th share of each property; (b) Directing the defendants 1 to 3 to render a true and proper accounts the affairs of the 6th defendant from the date of death of N.Manickam, i.e.,
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03.08.2010 and also value the goodwill of the 6th defendant and hand over 1/6th share; (c) directing the defendants 1 to 3 to pay the plaintiff 1/6th of the amount lying in fixed deposit with State Bank of India, K.K.Nagar Branch and Indian Bank, M.G.R.Nagar Branch and Rs.1.5 lakhs in fixed deposit with Royapettah benefit fund; (d) costs of the suit.
For Applicant :M/s.A.S.Kailasam and Associates
For Respondents :Mr.A.H.Srikanth
O R D E R
The above suit is filed for the following reliefs:
"a. For partition by metes and bounds of Schedule "A"
to Schedule "E" properties and hand over physical vacant
possession of the 1/6th share of each property;
b. Directing Defendants 1 to 3 to render a true and proper accounts the affairs of the 6th defendant from the date of death of N.Manickam, i.e., 03.08.2010 and also value the goodwill of the 6th defendant and hand over 1/6th share;
c. Directing the defendants 1 to 3 to pay the plaintiff
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1/6th share of the amount lying in Fixed Deposit with State Bank of India, K.K.Nagar Branch and Indian Bank, M.G.R Nagar Branch and Rs.1.5 lakhs in Fixed Deposit with Royapettah Benefit Fund;
d. Costs of the suit."
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dated 09.05.1965, bearing Document No.1512 of 1965, on the file of the SRO, Tambaram. This property has been described as Schedule "E".
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The "C", "D" and "E" schedule properties are lying vacant .
15.02.2007 and N.Manickam followed her on 03.08.2010.
defendants 1 to 5 each became entitled to 1/6th share in the suit "A" schedule properties.
N.Manickam and on his death, all the legal heirs would be entitled to a share in the business. The plaintiff has also given the details of the fixed deposit lying to the credit of her father. The plaintiff would submit that her husband has made a oral demand for partition and enraged by such demand, the first defendant has physically assaulted
the plaintiff's husband, as a result of which, the police complaint was
lodged and the first defendant was warned. After the death of her father, the plaintiff and the 4th and 5th defendants were demanding a
partition. But, however, the defendants 1 to 3, who are the brothers
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refused to comply with the requests, the legal notice dated 04.10.2011, issued by the plaintiff also did not evoke any response. Therefore, left with no other alternative, the plaintiff is constrained to file the instant suit. It appears from the notes sheet that several attempts have been made to settle the dispute between the parties, which had ended in failure. The defendants 1 to 4 and 6 were set ex-parte by order dated 16.07.2019 and it was only the 5th defendant who had filed a written statement along with the counter claim, seeking a decree of partition in respect of her 1/6 th share in the suit properties. The parties have also gone to trial, this despite the fact that the 5th defendant also demanded her 1/6th share. The plaintiff
was also cross examined by the learned counsel for the 5th defendant. The plaintiff had examined herself as PW.1 and had marked the following documents:
| Sl.No | Description of Documents | |
|---|---|---|
| 1 | Ex.P1 | The photocopy of the sale deed dated 09.05.1965, DOC.No.1512/1965 in favour of BabyManickam. |
| 2 | Ex.P2 | The photocopy of the sale deed dated 27.07.1972 in favour of Manickam, Doc.No.987 of 1972. |
| 3 | Ex.P3 | Thephotocopyof the sale deed dated 27.05.1985 |
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| Sl.No | Description of Documents | |
|---|---|---|
| in favour of N.Manickam, DOC.No.1464 of 1985. | ||
| 4 | Ex.P4 | The photocopy of the sale deed dated 21.09.1988 in favout of BabyManickam, Doc.No.3481/1988. |
| 5 | Ex.P5 | The photocopy of partition deed dated 28.04.1994 between N.Manickam and his brother Doc.No.810/1994. |
| 6 | Ex.P6 | The photocopy of the receipt dated 12.07.2002 issued by Baby Manickam for Rs.1.0 lakhs in favour of theplaintiff. |
| 7 | Ex.P7 | The photocopy of the death information certificate dated 03.08.2010 issued byIsabels Hospital. |
| 8 | Ex.P8 | The photocopy of the death certificate dated 16.08.2010 issued bythe Corporation of Chennai. |
| 9 | Ex.P9 | The photocopy of the Legal Heirship Certificate dated 22.10.2010 issued by the Tahsildar, Mambalam, GuindyTaluk. |
| 10 | Ex.P10 | The photocopy of the plaintiff's husband's complaint to Inspector of Police, K.K.Nagar, dated 15.03.2011. |
| 11 | Ex.P11 | The photocopy of the Acknowledgment issued by K.K.Nagar Police Station, dated 15.03.2011. |
| 12 | Ex.P12 | The photocopy of the Advocate's notice issued to the 1st to 3rd defendants dated 04.10.2011. |
| 13 | Ex.P13 | A photocopy of the Postal Acknowledgment (1 No.) and Returned covers(2 Nos.). |
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for hearing arguments. Today, when the matter was called, the learned counsel for the 5th defendant would submit that she has no objection to the suit being decreed and the plaintiff would also submit that she has no objection to the counter claim being decreed.
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P.T.ASHA, J.,
ub
C.S.No.505 of 2012
07.10.2020
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2 issues framed by the court
Whether the plaintiff and 5th defendant are entitled to a 1/6th share in the suit properties.
Whether a preliminary decree for partition should be declared in favor of the respective parties.
M. Shanthi
M. Umashankar
M. Thanigaivelu
M. Duraibabu
R. Thenmozhi
M. Banumathi
P.T. ASHA
As recorded by the court registry
2 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
