T K KAMALA Vs. A R THULASI RAO

JUDGEMENT

(1.) THE plaintiffs in O.S.No.10309 of 1987 on the file of VII Assistant Judge, City Civil Court, Madras, have preferred the second appeal aggrieved against the judgment and decree made in A.S.No.258 of 1995 dated 24.6.1996 reversing the judgment and decree of the trial Court dated 30.6.1994.

(2.) THE case in brief is as follows: THE plaintiffs filed a suit for partition and separate possession of their 1/3rd share in the suit property and also claimed past and future damages. THE suit property originally belonged to one Ramaiyer and he got the same under the partition deed dated 19.5.1967. THE said Ramaiyer died intestate on 8.3.1969 leaving behind the plaintiffs (daughters) and the defendant (son) as legal heirs. THEy are each entitled to 1/3rd share in the property. THE defendant is residing in a portion of the property and the other portions have been rented out to 3 tenants on a monthly rent. THE defendant alone is collecting the rents and the plaintiffs are deprived of their legitimate share. In spite of repeated demands and legal notice, partition was not effected. THE suit property is yielding a monthly rent of Rs.385 and the plaintiffs are claiming a sum of Rs.5,040 towards past mesne profits. Hence, the suit.

(3.) THERE is no dispute that the suit property belonged to one Ramaiyer with absolute power of alienation under a Deed of Partition dated 19.5.1967. The said Ramaiyer died intestate on 8.3.1969 and admittedly, the plaintiffs and the defendant are the legal heirs. The plaintiffs claimed each 1/3rd share in the properties, but, the defendant contended that the property is an ancestral one and, as such, each plaintiff is entitled to get only 1/6th share in the property. Apart from that, the defendant had met the funeral expenses and also discharged number of earlier debts and the plaintiffs are bound to pay their due share before claiming partition of the property. It is further stated that the plaintiffs cannot claim partition of the property considering the fact that the total extent is only 1,200 sq.ft. and if that be so, each plaintiff is entitled to get only 200 sq.ft. and, as such, they can be directed to get the value of the same.