CHANDRU Vs. K NAGARAJAN

JUDGEMENT

(1.) Being aggrieved by the dismissal of their suit for partition O.S.No.37 of 2006, unsuccessful plaintiffs have preferred this appeal. For convenience, the parties are referred as per their array in the Original Suit.

(2.) The plaintiffs and defendants 3 and 4 are the sons and daughters of defendants 1 and 2. Defendants 1 and 2 have been doing textile business in the name and style of M/s.Sri Ashtalakshmi Tex at Door No.59, Pulikuthi main road, Gugai, Salem. Each of defendants 1 and 2 are the sole proprietors of the said proprietary concerns. Both defendants 1 and 2 have availed financial assistance for their business concerns for which defendants 1 and 2 have mortgaged their properties viz., suit item Nos. 2 to 7 in favour of 5th defendant Bank by creating an equitable mortgage in respect of the said properties. By virtue of creation of equitable mortgage by defendants 1 and 2, 5th defendant Bank is having secured interest in suit Item Nos.2 to 7 properties. The loan accounts of defendants 1 and 2 were not regular as per their repayment schedule stipulated in the loan and security documents. Amount of Rs.10,62,402.31 and Rs.12,87,875.75ps were stated to be due from the defendants 1 and 2. Since the defendants 1 and 2 have failed and neglected to repay the loan amount, 5th defendant Bank had sent demand notice to defendants 1 and 2 under Section 13(2) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short, "SARFAESI Act"). The 5th defendant had also taken possession of the properties by exercising its power conferred under Section 13(4) of the Act.

(3.) At that stage, plaintiffs, who are the son and daughter of defendants 1 and 2, have filed the suit for partition. Case of plaintiffs is that the 1st defendant continued family business of his ancestors. The 2nd defendant mother hailed from a poor family and she has no means or money to purchase the suit items 2 to 6 out of her own money. Suit Item Nos.2 to 6 were purchased from out of the income earned in the family business and purchased in the name of defendants 1 and 2. Though the property had been purchased in the name of 2nd defendant, it had been intended to be purchased for the family and treated as joint family properties and the same had been enjoyed in common. Further case of plaintiffs is that they demanded for partition and separate possession of the suit properties in the year 1995 and several times subsequently and Defendants 1 and 2 were evading. The properties are joint family properties and each of the plaintiffs and defendants 1, 3 and 4 are entitled to 1/5th share each. Stating that defendants 1 and 2 have no right to deal with the shares of the plaintiffs or other members of the joint family, plaintiffs have filed the suit for partition to divide the suit properties into five equal shares and allot one such share to each of the plaintiffs.