R RAMAMURTHI IYER Vs. RAJA V RAJESWARA RAO

JUDGEMENT

(1.) This is an appeal by certificate from a judgment of the Madras High Court arising out of a suit for partition instituted on the original side of that Court.

(2.) Raja V. Rajeswara Rao the respondent herein and Raja V. Maheshwara Rao (deceased) who were brothers owned the cinema known as Odeon at Woods Road, Madras in equal shares. This property was leased out by them to Isherdas Sahni and Bros. In 1965 Raja Maheshwara Rao filed a suit in which it was stated that apart from other properties owned by the two brothers Odeon Cinema which consisted of land, buildings, theatre, furniture, talkie equipment etc. was owned by them in equal shares. The lease in favour of Isherdas Sahni and Bros. was to expire on April 30, 1967. As we are concerned only with the cinema property in the present case it is unnecessary to refer to the pleadings relating to other properties belonging to the two brothers. In Para 11 of the plaint it was pleaded that having regard to the nature of the property it was not possible or feasible or convenient to divide it into two halves by metes and bounds. It was prayed that the Court in exercise of its inherent jurisdiction should direct the property to be sold by public auction and pay the plaintiff his 1/2 share in the net proceeds, the sale being subject to the lease in favour of Isherdas Sahni and Bros. In the written statement filed by Raja Rajeswara Rao it was denied that the Odeon Cinema property was not capable of division into two halves by metes and bounds and it was averred that such a division was not only possible but it would be also just and proper. The right of the plaintiff in the suit to invoke the inherent powers of the Court for a decree for sale was denied. Paras 6 and 7 are reproduced below:

(3.) On October 14, 1966, Raja Maheswara Rao sold his half share in Odeon to N. C. Subramaniam and his sons who in their turn sold that share to Isherdas Sahni and Brothers (P) Ltd., on January 19, 1970. Raja Rajeswara Rao who was defendant in the original suit filed an appeal to the Division Bench of the High Court. During the pendency of the appeal the plaintiff died leaving a will and by an order passed by the Court on October 13, 1967 the executor appointed by the plaintiff under the will was impleaded as second respondent in the appeal.