URMILA DIVAKARAN Vs. K C RADHAKRISHANAN

JUDGEMENT

(1.) THIS Civil suit filed under Order VII Rule 1 of C.P.C. read with order IV Rule 1 praying to pass preliminary decree for partition and separate possession of plaintiffs 1/3th share in the suit schedule property; that to pass a final decree by appointing a Advocate Commissioner to divide the suit property by meet and bounds as per the preliminary decree; that to allot plaintiffs 1/3rd share so divided and put the plaintiff into possession of the same through Court; that to determine the future mesne profit under Order XX Rule 12 of C.P.C. and that to award the cost of the suit.

(2.) THE plaint averments in nutshell are as under:- 2.1. It is the case of the plaintiffs that they are the legal heirs of his grand father, namely, K.M.Vasudevan, who died intestate in 1950, leaving his three sons and they inherited all the properties and they were in enjoyment and possession thereof as co-owners. THE said K.M.Vasudevan was a member of the Madras Co-operative House Construction Society and entered into hire purchase agreement with it to purchase the suit property. However, after paying eight installments he died in 1950 and on his death, the first defendant became the Kartha of the joint family consisting of himself and his two younger brothers, namely, Divakaran and Ravindran and the joint family continue to pay the remaining installments under the hire purchase agreement to the Society. After paying due installments, the property was executed in favour of the first defendant being the Kartha of the joint family. THEreby, each of them are entitled for one third share. While so, the second brother, namely, Divakaran died in the year 2006 leaving the plaintiffs 1 and 2 as his heirs and so the plaintiffs became entitled to one third share and last brother, namely, Ravindran also died in the year 2006 leaving behind defendants 2 to 4 as his heirs. THE second defendant is his widow and the third defendant is his daughter and the fourth defendant is his son. Hence, the defendants 2 to 4 are jointly entitled to one third share of Ravindran. Since the first defendant is not agreeable for partition, hence the present suit is laid for partition and separate possession of the suit property. 2.2. Earlier, the first defendant filed a suit against his elder brother, namely, Divakaran in O.S.No.5591 of 1979 on the file of the XI Assistant City Civil Court, Chennai and the said suit was dismissed by the Court below holding that the suit property is the joint properties. On an appeal preferred by the first respondent in A.S.No.239 of 1987, the same was allowed and on a further appeal preferred by Divakaran before this Court in L.P.A.70 of 1991, the same was dismissed and he carried the matter before the Supreme Court in Civil Appeal No.15500 of 1996 and the Supreme Court pleased to set aside the findings of this High Court by holding that the first defendant is the absolute owner of the suit premises and the question of title of the first respondent to the suit property is left open to be decided. Hence, the plaintiffs are before this Court for preliminary decree for partition and separate possession.

(3.) AFTER hearing both sides and perusing the plaint and written statement, following issues were framed by this Court for trial:- ?1. Whether the first defendant as the ?Kartha? purchased the suit property for the joint family? 2. Whether the plaintiffs are entitled to 1/3rd share in the suit property? 3. Whether the sums due towards payment of the monthly installments to the Madras Co-operative House Construction Society were paid by K.C.Divakaran, the husband and father of the first and second plaintiff? 4. Whether the plaintiff is entitled to preliminary decree for partition and separate possession of 1/3rd share in the suit property? 5. Whether the plaintiff is entitled to mense profits under Order XX Rule 12 of C.P.C?