Madras High Court
P.Tharadevi vs N.Thiyagarajan (Deceased) on 15 June, 2022
C.M.A.No.1246 of 2022
IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED : 15.06.2022
CORAM:
THE HONOURABLE Ms. JUSTICE P.T. ASHA
C.M.A.No.1246 of 2022
and
C.M.P.No.9169 of 2022
1.P.Tharadevi
2.M.Gowri ... Appellants/Petitioners/Plaintiffs
Vs.
1.N.Thiyagarajan (deceased)
2.S.Padma
3.S.Jayalakshmi
4.S.Bhuvaneswari
5.S.Lokesh …Respondents/Respondents/Defendants
Prayer: Civil Miscellaneous Appeal is filed under Order 43 Rule 1 of
the Code of Civil Procedure to allow this appeal by setting aside the
Common Order dated 19.01.2021 in I.A.No.7013 of 2018 in
O.S.No.2762 of 2018 by ordering the 2nd respondent/2nd respondent/2nd
defendant Ms.S.Padma who is the daughter-in-law of the 1st
respondent/1st respondent/1st respondent to deposit 50% of the rent in
1/8
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C.M.A.No.1246 of 2022
the Lower Court which is the prayer of I.A.No.7013 of 2018 in
O.S.No.2762 of 2018 on the file of the learned XIX Additional Judge,
City Civil Court, Chennai.
For Appellants : Mr.K.Mugundhan
For Respondents : Mr.M.Praven Kumar for R2 and R5.
JUDGMENT
Challenging the dismissal of their application seeking a direction
to the respondents/defendants to deposit 50% of the monthly rents
calculated from the suit schedule property, the plaintiffs/petitioners are
the appellants before this Court.
2.The plaintiffs had filed a suit O.S.No.2762 of 2018 on the file
of the learned XIX Additional Judge, City Civil Court, Chennai, for a
partition and separate possession of their 1/4th each in the suit schedule
property and to declare the Settlement Deed dated 04.03.2013
registered as Document No.842/2013 in the office of the Sub Registrar,
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C.M.A.No.1246 of 2022
Purasaiwalkam, Chennai, executed by the 1st defendant in favour of
one T.Shankar, relating to the 2/4th share of the plaintiffs, as null and
void and for permanent injunction restraining the defendants and their
heirs, attorneys, agents, representatives and any person or persons
claims under them from encumbering or alienating the suit schedule
mentioned property.
3.The plaintiffs would submit that the suit properties are the
ancestral properties of the 1st defendant who is the father of the
plaintiffs and one T.Shankar, who predeceased the 1st respondent on
15.11.2017. The respondents 2 to 5 are the legal representatives of the
said Shankar who died intestate. The appellants would submit that the
properties are the ancestral properties of the 1st defendant and her
siblings. They had entered into a registered Deed of Partition dated
09.06.1988 and the suit properties were allotted to the share of the 1st
defendant (who is since deceased) and the 1st defendant was managing
the properties as Kartha of the joint family.
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C.M.A.No.1246 of 2022
4.It is the case of the plaintiff that they along with their
predeceased brother Shankar are the legal representatives of the 1st
defendant and his wife Mariammal. The plaintiff would submit that the
parents had died intestate the plaintiffs and the defendants became
entitled to the 1/4th share each on the death of their father. Despite
request to the 1st defendant to partition the property he has not come
forward to partition the same. After the death of Shankar, the
appellants have approached their father, the deceased 1st defendant for
partitioning the property, he had informed that the properties have
already been settled on his son Shankar under a Settlement Deed on
04.03.2013. The plaintiffs on applying the Encumbrance Certificate on
02.04.2014 came to learn about the Settlement Deed executed by the
father in favour of the said Shankar. The plaintiff would submit that
they are entitled to a share in the suit property being the legal heirs of
the deceased 1st and 2nd respondents. Along with the suit, the appellants
had also filed an application for injunction (which is the subject matter
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C.M.A.No.1246 of 2022
of the challenge). The respondents had entered appearance and filed
their counter.
5.The learned XIX Additional Judge, City Civil Court, Chennai,
after considering the rival claims held that the appellant is not entitled
to an order of injunction. The learned Judge had held that the
appellants have to first establish their rights to seek partition and since
the right has not yet been established they were not entitled to the
interim order. Challenging the same, the appellants are before this
Court.
6.Heard the learned counsel appearing for the appellants and the
Caveator and perused the papers.
7.The appellants had filed the suit for a partition and separate
possession of their 1/4th share in the suit property. The appellants have
not sought for the relief of accounting in the main suit. The
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C.M.A.No.1246 of 2022
respondents have filed a Written Statement denying the right of the
appellants to claim a share in the suit property on the ground that the 1st
defendant was the absolute owner of the property by virtue of a
Partition Deed of the year 1988. The right of the appellants to the share
to the suit schedule property is yet to be declared.
8.That apart, the suit is of the year 2018 and considering the fact
that the appellants have not sought for rendition of accounts and mesne
profits in the main suit they cannot seek the same by way of
Interlocutory Application. The trial Court has rightly held that the
plaintiffs' right to claim partition is yet to be decided. Therefore, the
said application is premature and the trial Court have rightly rejected
the same. I see no reason to interfere with the well considered order.
Accordingly, this Civil Miscellaneous Petition is dismissed. The
learned XIX Additional Judge, City Civil Court, Chennai, is directed to
expedite the hearing in O.S.No.2762 of 2018. The learned Judge shall
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C.M.A.No.1246 of 2022
endeavour to dispose of the suit within two months from the date of
receipt of a copy of this Judgement. No costs. Consequently,
connected Miscellaneous Petition is closed.
15.06.2022
Index : Yes/No
Internet : Yes/No
Speaking order / Non speaking order
mps
To
The XIX Additional Judge,
City Civil Court,
Chennai.
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C.M.A.No.1246 of 2022
P.T. ASHA, J,
mps
C.M.A.No.1246 of 2022
and
C.M.P.No.9169 of 2022
15.06.2022
https://www.mhc.tn.gov.in/judis
