Madras High Court
Malarvizhi Pinheiro vs Pamela Manuel on 9 March, 2022
C.S.No.395 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date : 09.03.2022
CORAM
THE HON`BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.S.No.395 of 2017
Malarvizhi Pinheiro .. Plaintiff
vs.
1. Pamela Manuel
2. Peter Vasanthan Pinheiro .. Defendants
Civil Suit filed under Order IV Rule 1 of Original Side Rules read
with Order VII Rule 1 C.P.C., praying for the following Judgment and
Decree against the defendants.
a) For a preliminary decree declaring that the plaintiff is entitled to
1/3rd share in the suit A and B schedule properties;
b) For a partition and separate possession of the plaintiff 1/3rd share
of the suit A and B schedule properties;
c) Permanent injunction restraining the defendants, their men agent,
servants or anybody claiming through or under them from in any way
alienating or encumbering the suit A and B schedule properties;
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C.S.No.395 of 2017
d) For a direction directing the defendants to furnish rendition of
accounts for suit A and B Schedule properties
e) To award cost of the suit and
f) To grant such other order or further reliefs;
For Plaintiff : Mr.J.Venkatesa Perumal
For Defendants : No Appearance
JUDGMENT
The suit is filed to declare the plaintiff's 1/3rd share each in the suit
schedule properties, morefully described in the schedules and pass a
preliminary decree by directing the defendants to pay the costs of the suit.
2. The brief facts of the case, as averred by the plaintiff in the plaint
are as follows:
(i) The plaintiff and the defendants are legal heirs of deceased late
Dr.Manuel R.Pinheiro, who are daughter and wife and son respectively.
One Mr.Vijayan Pinheiro, who is also the son of the deceased Dr.Manuel
R. Pinheiro died on 31.03.2012. The plaintiff married one Peter Pinheiro
and the marriage held at Rajah Muthaiah Hall, Egmore, Chennai. There
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C.S.No.395 of 2017
are two properties, viz., bearing door no.6 (old no. 15) in Kamaraj Park
Lane, (old municipal door nos.81 to 83 and 1/84 and 2/84) Suryanarayana
chetty street, Royapuram, Chennai – 600 013, measuring 2 grounds and
2385 sq. ft., and another property at house old no.40, Pedariar koil Street,
Chennai – 600 013, measuring 1 ground and 320 sq. ft., which were
morefully described in the schedules A and B of the plaint and the property
originally belong to the plaintiff's father and after his demise, the same
were jointly inherited by the defendants along with the plaintiff.
(ii) Further, the 2nd defendant is collecting the rent of Rs.90,000/- per
month from car parking at 'A' schedule property for the past 3 years and
the 2nd defendant running a school, namely, Baby's Day out at 'B' Schedule
property for the past 3 years. On the death of the plaintiff's father, the
plaintiff being one of the legal heirs of the deceased, Manuel R.Pinheiro,
has become joint co-owners of the suit schedule A and B properties along
with the defendants herein. After the demise of the father of the plaintiff, the
plaintiff demanded the defendants for partition and separate possession of
her share as per the Indian Succession Act, 1925. As per the said Act, the
plaintiff is entitled to 1/3rd share in the suit Schedule A and B properties and
entitled for rents from A and B schedule properties.
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C.S.No.395 of 2017
(iii) After the plaintiff's demand for partition and separate possession
of the suit A and B schedule properties and rents from respective
properties, etc., the 2nd defendant is trying to alienate the suit A and B
Schedule properties. If the defendants succeed in their attempts of
disposing the suit A and B Schedule properties or encumber the same, the
plaintiff will be put to irreparable loss and great prejudice will be caused to
them. Hence the present suit.
3. Heard the learned counsel for the plaintiff and perused the
documents on record.
4. Though the summons have been received by the defendants on
16.06.2017, the 1st defendant has not appeared till 19.01.2021 and
Mr.Karthikeyan Sekar, learned counsel, who entered appearance on behalf
of 2nd defendant has not chosen to file written statement, hence the
defendants were set exparte for non-filing of the Written Statement and
this Court directed the learned Additional Master No.II to record exparte
evidence on 19.01.2021. Plaintiff, namely, Malarvizhi Pinheiro has filed the
proof affidavit during her chief examination and marked 5 documents as
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C.S.No.395 of 2017
documentary evidence to prove her claim. In the Ex-parte Evidence, the
plaintiff examined herself as P.W.1 and marked the following documents as
Exs.P1 to P5, as documentary evidence, in order to prove the suit claim:-
Exhibits produced on the side of the plaintiff:
S.No. Exhibits Date Description
1. P-1 15.04.1967 Copy of the sale deed dated
15.04.1967 ('B' Schedule property)
2. P-2 02.03.2001 Copy of the Sale deed dated
02.03.2001('A' Schedule property)
3. P-3 15.03.2001 Original death certificate
4. P-4 Copy of the property tax card
5. P-5 Original CMWSS bill
Witnesses examined on the side of the plaintiff:
P.W.1. - Mrs.Malarvizhi Pinheiro
4. Considering the oral and documentary evidence, viz., Ex.P1 to
Ex.P5 adduced by P.W.1 and in the absence of any defence by way of
filing written statement or letting in oral evidence by the defendants, this
Court is of the view that the plaintiff has proved the suit claim and hence,
the Plaintiff is entitled for her 1/3rd share in the Suit Schedule Properties.
Accordingly, preliminary decree for partition is granted with costs.
09.03.2022
Index:Yes/No
Web:Yes/No
Speaking order / non speaking order
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C.S.No.395 of 2017
V.BHAVANI SUBBAROYAN, J
ssd
C.S.No.395 of 2017
09.03.2022
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