Madras High Court
P.Vinod Kannan vs P.Vishu Raghav on 8 August, 2023
C.S. No.338 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.08.2023
CORAM:
THE HONOURABLE Ms. JUSTICE R.N.MANJULA
C.S. No.338 of 2021
and A.No.1108 of 2022
P.Vinod Kannan ... Plaintiff
Vs.
P.Vishu Raghav ... Defendant
Civil Suit is filed under Order IV Rule 1 of Original Side Rules r/w.
VII Rule 1 of CPC to pass a judgment and decree in his favour and against
the defendant:
i) to pass a preliminary decree for partition in favour of the plaintiff
for his half share in the suit schedule mentioned properties by separate
possession;
ii) to direct the defendant to pay a sum of Rs.10,41,300/- towards past
monthly rent from September 2018 to September 2021 with interest @ 18%
p.a. till realization in full;
iii) to direct the defendant to pay a sum of Rs.33,750/- (presently the
total month rental income is Rs.67,500) per month towards monthly rent
from the date of this plaint to till the date of delivery possession;
iv) to pass a final decree by appointing an Advocate Commissioner to
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C.S. No.338 of 2021
effect a convenient division of the suit schedule mentioned properties and
allot ½ (half) share by metes and bounds in favour of the plaintiff.
v) to order defendant to pay the cost of the suit.
For Plaintiff : Ms.T.S.Selvarani
For Defendant : Ex-parte
JUDGMENT
This Civil Suit has been filed to pass a preliminary decree for partition
in favour of the plaintiff for his half share in the suit schedule mentioned
properties by separate possession, to direct the defendant to pay a sum of
Rs.10,41,300/- towards past monthly rent from September 2018 to
September 2021 with interest @ 18% p.a. till realization in full, to direct the
defendant to pay a sum of Rs.33,750/- (presently the total month rental
income is Rs.67,500) per month towards monthly rent from the date of this
plaint to till the date of delivery possession and to pass a final decree by
appointing an Advocate Commissioner to effect a convenient division of the
suit schedule mentioned properties and allot ½ (half) share by metes and
bounds in favour of the plaintiff.
2. Originally the suit schedule property belonged to one
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C.S. No.338 of 2021
A.D.Seetharam who is the grandfather of the plaintiff and defendant by
virtue of a sale deed dated 25.12.1953. The said A.D.Seetharam died on
19.11.1973 leaving behind his wife Kamalambal and his son
A.S.Padmanabhan as his legal heirs. The wife of A.D.Seetharam also died on
19.05.1987 and his son A.S.Padmanabhan also died on 26.01.2019. The wife
and three children of A.S.Padmanabhan stood as his legal heirs at the time of
his death. The wife of A.S.Padmanabhan by name P.Kumuthalakshmi also
died on 18.09.2006 and one of the sons by name P.Vivekanand died on
03.12.2003. Now the plaintiff and the defendant alone are the surviving legal
heirs of the A.S.Padmanabhan. So far as the plaintiff and defendants are
concerned the property is their ancestral property and in which both the
plaintiff and the defendant have got equal share. Since the defendant is not
amenable for partition, the plaintiff had filed this suit for partition.
3. The defendant remained ex parte. The plaintiff have filed this suit
claiming half share of the suit property along with past and future mesne
profits.
4. Heard Mr.R.Venkatesh, the learned counsel counsel for the plaintiff.
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C.S. No.338 of 2021
5. The issues that arise for consideration in this suit are as follows:
i) Whether the plaintiff is entitled to half share in the suit property?
ii) Whether the plaintiff is entitled to preliminary decree for partition in
respect of ½ share in the suit property ?
iii) Whether the plaintiff is entitled to past and future mesne profits as
claimed?
6. During the course of recording of evidence, the plaintiff examined
himself as P.W.1 and Exs.P1 to P18 were marked.
7. The certified copy of the sale deed dated 25.12.1953 which is
marked as Ex.P1 would show that the suit properties were purchased by
A.D.Seetharam who is the grandfather of both the plaintiff and the
defendants. The death certificate of A.D.Seetharam is marked as Ex.P2 and
the death certificate of his wife Kamalambal is marked as Ex.P3. After the
demise of A.D.Seetharam, his only son A.S.Padmanabhan had chosen to sell
whole of the suit property and now the remaining extent is shown in Item
No.1. Ex.P4 is the sale deed of Item No.2 of the suit property purchased by
the wife of A.S.Padmanabhan by virtue of a sale deed dated 25.01.1993
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C.S. No.338 of 2021
which is marked as Ex.P4. The death certificate of P.Kumuthalakshmi and
one of the sons by name P.Vivekanand has also been produced as Ex.P6 and
P7. Ex.P8 is the death certificate of A.S.Padmanabhan. The legal heirship
certificate of A.S.Padmanabhan which is marked as Ex.P9 would show that
the plaintiff and the defendants are his only legal heirs. Since the plaintiff
and the defendant are the only legal heirs of both their parents,
A.S.Padmanabhan and P.Kumuthalakshmi, they are entitled to half share in
the same. Since the defendant did not come forward to partition, the plaintiff
had sent a legal notice on 02.03.2021 which is marked as Ex.P13. The reply
notice sent by the defendant is marked as Ex.P14 for which the plaintiff had
also sent a re-joinder and the same is marked as Ex.P15.
8. It is submitted by the learned counsel for the plaintiff that the
defendant is getting all the rents from the suit property without paying the
respective share of the plaintiff; since the plaintiff and the defendant are
entitled to half share in the suit property, they are also entitled to half share
in the past and future mesne profits of the suit property as well.
9. Since the plaintiff had proved through oral and documentary
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C.S. No.338 of 2021
evidence that he is one of the legal heir of A.S.Padmanabhan and
P.Kumuthalakshmi, along with the defendant, the plaintiff is also entitled to
half share in the suit property. Thus Issues 1 and 2 are answered.
10. With the above evidence, the plaintiff had proved his claim and
hence he is entitled to get preliminary decree of partition in respect of his
half share in the suit property.
11. In the result the Civil Suit is decreed and preliminary decree in
respect of the half share of the plaintiff in the suit schedule property and in
respect of the half share of the plaintiff in the past and future mesne profits is
passed. However the quantum of past and future mesne profits will be fixed
in a separate proceeding. Consequently, connected application is closed.
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C.S. No.338 of 2021
APPENDIX
Witnesses examined:
P.Vinod Kannan – P.W.1
List of documents:
Exhibits Documents
P1 Certified copy of the sale deed dated 25.12.1953
P2 Death certificate of A.D.Seetharam
P3 Death certificate of A.S.Kamalambal
P4 Sale deed dated 25.01.1993
P5 Original joint development agreement dated 30.08.2001
P6 Death certificate of Vivekanand
P7 Death certificate of P.Kumudhalakshmi
P8 Death certificate of A.S.Padhmanaban
P9 Legal heirship certificate dated 15.05.2019
P10 CSR of the complaint given by the plaintiff against the defendant dated
11.11.2020
P11 Order in Crl.O.P.No.18165 of 2020
P12 CSR regarding plaintiff against tenants dated 23.02.2021.
P13 Legal notice sent to the defendant dated 02.03.2010
P14 Reply notice sent by the defendant's advocate dated 16.03.2021
P15 Rejoinder with original acknowledgment card given by the plaintiff dated
18.04.2021
P16 Monthly rent amount sent by Whatsapp to plaintiff by the defendant on
various months
P17 Statement regarding rent amount so far paid by the defendant and the
balance amount has to be paid
P18 Aadhaar card
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C.S. No.338 of 2021
R.N.MANJULA, J.,
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