(Prayer: Plaint filed under Order IV Rule 1 with Order XXIV Rule 1 of the Original Side Rules of this Court read with Order VII Rule 1 of the Civil Procedure Code and the suit numbered as C.S.No.115 of 2021, praying for the judgment and decree against the defendants as under:
(a) For a preliminary decree declaring that the plaintiff is entitled to 1/3 share in the suit schedule property and effect division of the property by appointing an Advocate Commissioner to divide the immovable property of family into three equal shares and allot 1/3 share to the plaintiff;
(b) For permanent injunction restraining the defendants, their men, servants, agents, or any persons claiming under them from in any manner interfering with possession and enjoyment of the suit property by plaintiffs by way of sale, mortgage, charge or lease or joint development, of the suit property or encumbering or alienating or altering the suit schedule property by way of change the topography/physical features of the suit property except in accordance with law, and
(c) for costs of the suit.
All that piece and parcel of vacant land with trees thereon ad-measuring 6606 Square Feet as per documents (as per Computer patta ad-measuring 6576 Square Feet in T.S.No.2/2, O.S.No.170/A in name of Ramaben @ Ramabai Ramdas, late wife of Ramdas Purushothamdas) in “Gokul Bagh”, situated in Block No.14, T.S.No.2, R.S.No.170/1, Part in No.107, Arumbakkam Village, Poonamallee High Road, Chennai-600 106, measuring North to South on the Eastern side 131’-6”, North to South on the Western Side 131’-0”, East to West on Northern Side 50’-6” and East to West on the Southern side 50”-9”, bounded on the North; Part of T.S.No.2/2 (R.S.No.170/1) and Poonamallee High Road; South by: T.S.No.3, Block No.14, and on the East by: Seth Purushothamdas Gokuldas Road, and West by: Dwaraka Doss Goverdhan Doss Vaishnav College, within the Registration District of Kodambakkam, and Registration District of Chennai Central.)
1. Though the Original Application is listed for hearing, considering the submissions made on either side and in view of the consent given by the parties for partition of the respective shares in the suit property, as stated infra, by amicably settling the issue among themselves, the present suit itself is taken up for hearing and is being disposed of by this judgment.
2. The case of the plaintiff as culled out form the plaint is as follows:
(a) The plaintiff’s eldest brother was Ramdas Purushothamdas, son of Late Seth Purushothamdas Gokuldas, and the said Ramdas Purushothamdas died intestate on 16.11.1979 and his wife Ramaben @ Ramabai also died intestate on 31.03.1987. The plaintiff and the deceased Krishnadas Purushothamdas and the fifth defendant are Class-II heirs (as per Hindu Law), being the brothers of Late Ramdas Purushothamdas.
(b) Under partition deed, dated 01.04.1964, Late Ramdas Purushothamdas was allotted properties mentioned in the Schedule C-2, therein. During his life time, the properties allotted under the partition deed, were sold by Ramdas Purushothamdas, except for three grounds of vacant land/site in “Gokul Bagh” as described in the schedule of property.
(c) Shri.Bharat Kumar K.Shah, son of Late Krishnadas Purushothamdas, second defendant herein, taking advantage of bedridden sickness of his father and his fiduciary relationship among family members, gave portion of the land (3500 square feet or thereabouts in T.S.No.2, R.S.No.170/1 Part out of the three grounds of land) in the said Gokul Bagh, to Rotary Club of Madras South West for running of Down’s Research Society (India). Since the above said project failed, by 2014, late Krishnadas Purushothamdas become very sick, with the result, the above said Shri.Bharat Kumar K.Shah, had taken over the affairs of Late Krishnadas Purushothamdas.
(d) The said Shri.Bharat Kumar K.Shah, being the son of Late Krishnadas Purushothamdas, during the illness of Late Krishnadas Purushothamdas, took custody of title deed(s) pertaining to the suit property, without informing the other family members.
(e) After the demise of Krishnadas Purushothamdas, the plaintiff requested the second defendant/Shri.Bharat Kumar K.Shah to furnish the title deed(s) of the suit property and come forward to partition the suit property. The second defendant informed the plaintiff that only small extent of land of Late Ramdas Purushothamdas is available and it was not suitable for partition by division by metes and bounds.
(f) After enquiry by the plaintiff, it was found that nearly three grounds of Estate of Late Ramdas Purushothamdas, is available for partition inside “Gokul Bagh”. As Class-II heir and as person who had performed obsequies of Late Seth Ramdas Purushothamdas, the plaintiff claimed the entire share, but the same was refused by the second defendant. Therefore, the plaintiff, requested for atleast division of 1/3 share in the suit property, as far as his share is concerned,
(g) The plaintiff issued notice through his Advocate on 06.01.2021 calling upon the first and fifth defendants and legal representatives of the deceased Late Krishnadas Purushothamdas, for division of suit property by metes and bounds. The fifth defendant, by his registered letter dated 23.02.2021, expressed his willingness for partition of the suit property by metes and bounds. But the legal representatives of the deceased Krishnadas Purushothamdas had not come forward for division of the suit schedule property. Since the fifth defendant alone earlier agreed for partition, he has been added as a necessary party for effective adjudication of the suit claim. Hence, the present suit is filed for the relief stated supra.
3. Heard the learned counsel appearing for the parties and perused the pleadings and materials available on record.
4. At the time of arguments made in the present suit, the learned counsel for the parties submitted as below:
Apart from leaving the share of the plaintiff to 1/3 in the suit property, the fifth defendant agreed and gave consent for his 1/3 share in the suit property and that the defendants 1 to 4 together agreed and gave consent for 1/3 share (among themselves).
5. Thus, the parties herein agreed for partitioning the suit property into 1/3 share among themselves as stated above.
6. Accordingly, there shall be a preliminary decree of partition in terms of the above consensus-ad-idem arrived at between the parties, partitioning 1/3 share each as mentioned above, as far as the prayer (a) in the plaint is concerned.
7. Insofar as the second prayer (b) in the plaint seeking for pe
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rmanent injunction, is concerned, the same does not arise, in view of the consent given by the parties for 1/3 share each, as stated supra. 8. It is to be noted that the parties have paid necessary stamp duty/Court fee in respect of their respective shares allotted now in the partition of the suit property. 9. The parties shall file application for appointment of Advocate Commissioner to divide the property into three equal halves by metes and bounds and to allot the respective shares to them. 10. There shall be no judgment and decree as to costs in the present suit. 11. Consequently, O.A.No.175 of 2021 is closed. 12. List the application for appointment of Advocate Commissioner on 20.10.2021.