GAJENDRAN Vs. VASANTHA BAI

JUDGEMENT

(1.) THIS appeal has been directed against the decree and judgment in O.S.No.983 of 1996 on the file of the IV Additional Judge, City Civil Court, Chennai. The plaintiff has filed the suit for partition and for mesne profits.

(2.) THE averments in the plaint sans irrelevant particulars are as follows:-THE plaintiff, first defendant and second defendant are the children of one Saradhambal, who got the plaint schedule property bearing No.109, Bazaar Road, Periapattai, Mambalam Zamin, Saidapet, Madras-15, under a settlement deed dated 05.02.1953. THEre was a mortgage over the said property, which was to be discharged by the settlee. Mrs. Saradhambal, the settlee under the settlement deed dated 05.02.1953 had discharged the mortgage and she was in possession and enjoyment of the suit property till her death on 12.05.1980. Before her death she had put up the first floor and had rented out the front portion of the suit property to various tenants. She was getting a monthly rent of Rs.250/- from her tenants, besides that she was also getting Rs.75/- per month towards rent from the shop. Totally Saradhambal was getting Rs.600/- per month towards rent from her tenants. THE first defendant was working as a clerk since 1963 at the Voluntary Health Services Hospital aided by the Government of Tamil Nadu situate in Canal Road Adyar, Madras-113. THE first defendant is residing in a tenement measuring 30' x 10' at the suit property since her marriage in March-1966. THE second defendant is residing with his family in the 1st floor portion of the front building at the suit property. THE plaintiff is a Secondary Grade Teacher since 1968 working in the Municipal Government Middle School at Alandur, Madras-16. From the date of her marriage i.e., on 13.06.1976, the plaintiff is residing with her family in the rental premises at Door No.2, Arcot Jambulinga Mudaliar Street, Radha Nagar, Chrompet, Madras-44. THE plaintiff and defendants are in joint possession of the suit property while the defendants are collecting the rents. Being one of the three heirs of her mother late Tmt.Saradhambal, the plaintiff is entitled to 1/3rd share in the suit property and the income thereon which are being enjoyed by the defendants. THE plaintiff had demanded the defendants in person through relatives and panchayatdars for partition of the suit property and allotment of her 1/3rd share, but the second defendant refused the same. Hence, the plaintiff issued notice dated 14.02.1995 to the defendants. THE first defendant in her letter dated 28.07.1995 agreed for partition of the suit property by meates and bounds into three shares and allotment of one share for the plaintiff as well as one share for herself. THE second defendant in his reply dated 31.07.1995 had made false allegations against the aspect of partition. THE Second Mortgage dated 29.07.1972 incurred for putting up tenements in the property was discharged by Late Saradhambal by the rental income from the suit property. THE second defendant was not employed in any public or private establishment at any time and he is doing only milk business. THE income from the said business is sufficient only to maintain his family. So the allegation in the reply notice that he had discharged the secured debts in respect of the suit property is untenable. Hence, the suit.

(3.) AFTER scanning the evidence both oral and documentary the learned trial Judge has come to the conclusion that the plaintiff is entitled to a preliminary decree for partition of her 1/3rd share in the plaint schedule property and accordingly decreed the suit, relegating the issue regarding mesne profits to a separate proceedings under Order 28 Rule 12 of CPC. Aggrieved by the findings of the learned trial judge, the second defendant has preferred this appeal.