K.Anand Vs v.K.Raajenthiraan

Prayer : This appeal has been under Section 96 r/w. Order XLI, Rule 1 of CPC to set aside the judgment and preliminary decree dated 29.04.2019 in O.S.No.1 of 2008 on the file of the III Additional District Court, Cuddalore at Vriddhachalam.

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For Appellant(s): Mrs.A.L.Ganthimathi, SC for Mr.L.Palanimuthu For Respondent(s): Mr. V.Raghavachari, SC for Mrs. V.Srimathi, for R1 Ms.R.Priyadharshini, for R2 Mr.C.T. Murugappan, for R4 to R6 Mr. T.Dhanasekar, for R7 Mr. G.Nanmaran, Spl. G.P. for R8 to R10

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ORDER

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(Order of the Court was made by N.Sathish Kumar J.)

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Challenging the preliminary decree passed by the Trial Court, the appellant, who is the 7^th defendant in the suit in O.S.No.1 of 2008 on the file of

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https://www.mhc.tn.gov.in/judis

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AS No. 655 of 2019

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the III Additional District and Sessions Court, Cuddalore at Vriddhachalam, is before this Court.

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The suit has been originally filed by the plaintiff seeking declaration of title in respect of “B” schedule property and partition in respect of item “A”, “C” and “D” schedule properties.

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While decreeing the suit for declaration of title in respect of the “B” schedule property in favour of the plaintiff, the Trial Court also passed a preliminary decree granting 1/6th share to the plaintiff in respect of “A” schedule property and except items 11 to 14, all other properties in “C” schedule properties. In respect of the “D” schedule property also, the plaintiff was granted a preliminary decree for 1/6th share. Challenging the same, the 7^th defendant has filed the present appeal.

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It is submitted by the learned Senior Counsel appearing for the appellant that except the plaintiff, all other sharers, who were entitled to 1/6th share each in schedule “A”, and schedule “C” (except items 11 to 14) and schedule “D”, have settled their respective shares in favour of the appellant herein by way of settlement deeds bearing Nos.1191 of 2024 and 1242 of 2024, 1108/2024 and 5379 of 2024 respectively.

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AS No. 655 of 2019

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According to the appellant, by virtue of the said settlements, the appellant is entitled to 5/6^th share in items “A”, “B”, “C”, and “D”. It is also stated by the learned Senior Counsel that, in so far as the “B” schedule property is concerned, which was declared in favour of the first respondent/plaintiff, the appellant is not pressing the same.

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In this regard, it is submitted that a compromise has been entered into between the parties, namely, the appellant/7th defendant and the respondent Nos.2, 4, 6 & 7(defendants 1,3,5 & 6), to whom shares were allotted under the preliminary decree, have executed settlement deeds in favour of the appellant.

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The learned counsel appearing for the respondents 2, 4 to 6 and 7 have also submitted that they have no objection for modifying the preliminary decree since they have already executed settlement deeds in favour of the appellant.

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The learned Special Government Pleader, appearing for the respondents 8 to 10 have likewise expressed no objection.

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Though R3, R4 is also not a party to the compromise, they have no objection to the modification.

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AS No. 655 of 2019

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In such view of the matter, in respect of items in Schedule “A”,

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Schedule “C” (except 11 to 14), and Schedule “D”, the appellant, namely, the 7^th defendant, is entitled to 5/6th share by virtue of the settlements executed by the other sharers, and the remaining 1/6th share shall go to the plaintiff. The plaintiff shall also be entitled to the entire “B” schedule property as declared by the Trial Court.

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In the result, the judgment and the preliminary decree dated 29.04.2019, passed in O.S.No.1 of 2008 by the learned III Additional District Judge, Cuddalore at Vriddhachalam, shall stand modified as follows:-

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i) The appellant/7th defendant is entitled to 5/6^th share in schedule “A”, Schedule “C”(except item 11 to 14) and schedule “D”.

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ii) The remaining 1/6th share shall vest with the plaintiff. Further, the entire “B” schedule property shall vest with the plaintiff.

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iii) It is made clear that in the event of any deviation agreed between the

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parties, the parties are at liberty to bring the same to the notice of the Court at the time of passing the final decree.

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iv) The joint compromise memo filed by the appellant and the respondents 2, 4, 6, & 7 shall form part of the decree.

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v) It is further made clear that the plaintiff is not a party to the

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compromise and that the modification is based solely on the compromise arrived at between the other sharers, who have transferred their shares in favour

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of the appellant/7th defendant.

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