P.V.S.Rajendran vs P.V.S.Krishnamurthy (deceased), & Ors.

The suit has been laid by the plaintiff for partition.

The averments contained in the plaint are briefly stated as follows:

The first defendant (since deceased) is the elder brother of the plaintiff. Both the plaintiff and the first defendant, out of their self earnings, have

jointly purchased the plaint schedule property under the sale deed dated 01.10.1990 and in joint possession and enjoyment of the same and patta

for the said property has been jointly in the names of plaintiff and the first defendant. Inasmuch as the plaintiff desired to develop his share of the

property and as the present area under the plaintiff''s occupation is not sufficient to meet his need and needs of his family, he requested the first

defendant to effect amicable partition of the suit property and allot the share, to which, the plaintiff is entitled to in respect of the same. However,

the first defendant had been postponing the same, without lawful excuse and left with no other option, the plaintiff sent a legal notice dated

02.08.2012 calling upon the first defendant to allot the plaintiff''s 1/2 share in the suit property. Despite the receipt of the notice, the first defendant

neither complied with the demand made in the same nor responded to the same. Hence, the plaintiff has been necessitated to lay the suit for

partition.

The averments contained in the written statement filed by the defendants 2 to 6 are briefly stated as follows:

It is true that the plaintiff and the first defendant are brothers and that, they purchased the suit property by means of the sale deed dated

01.10.1990. The plaintiff is living in the ground floor and the defendants 2 to 6 are living in the first floor. The notice sent by the plaintiff was replied

on 21.08.2012 and the rejoinder has also been sent by the plaintiff''s counsel on 22.09.2012. However, without seeing the response of the

defendants, the plaintiff has hurriedly laid the suit. The suit property was developed by the first defendant out of his income and the plaintiff has not

made any contribution and the contribution made by the plaintiff was also very meagre. The defendants are agreeable for the division of the suit

property into two equal shares. The first defendant had requested the plaintiff to allot the share in the suit property facing Vadivelu 2nd Cross

Street, so that, the plaintiff can take the remaining 1/2 share facing Rajeswari street. Though the above proposal was genuine, the plaintiff did not

agree to the same. The defendants are agreeable for partition and the plaintiff may be allotted 1/2 share and the defendants may be allotted their

1/2 share in the suit property facing Vadivelu 2nd cross street. Accordingly, the suit may be disposed off.

On the basis of the above pleadings, the following issues are framed for determination in this civil suit:

Whether the plaintiff is entitled for partition and allotment of 1/2 share in the suit property?

Whether the plaintiff is joint owner of the suit property along with the defendant?

To what other reliefs, the parties are entitled to?

In support of the plaintiff''s case, PW1 has been examined and Exs.P1 to P7 were marked. On the side of the defendants, no oral and

documentary evidence has been adduced.

ISSUE NO.1 & 2

The plaintiff and the deceased first defendant are brothers. There is no dispute with reference to the same. It is also found that the suit property had

been jointly purchased by the plaintiff and the first defendant by way of the sale deed date 01.10.1990, which has been marked as Ex.P1. The

same is also not in dispute. It is also found that patta in respect of the suit property stands jointly in the name of the plaintiff and the deceased first

defendant and the same has been exhibited as Ex.P2. It is, thus, found that the suit property is jointly owned by the plaintiff and his brother, the

deceased first defendant. According to the plaintiff, inasmuch as he had desired to improve his share in the suit property for meeting the

requirements of his family, he has requested the first defendant to effect partition of his share and inasmuch as the first defendant did not accept to

the same and further, as the first defendant did not respond favorably, despite the pre-suit notice, according to the plaintiff, he has necessitated to

lay the suit for partition claiming 1/2 share in the suit property.

The defendants have filed their written statement and it is found that they have accepted the case of the plaintiff in entirety. According to the

defendants, the pre-suit notice issued by the plaintiff had been suitably responded. But the plaintiff, without waiting for the appropriate response

from the defendants, has come forward with the suit hurriedly.

Be that as it may, it is not in dispute that the suit property is jointly owned by the plaintiff and the first defendant. Accordingly, it is found that the

plaintiff is entitled to claim 1/2 share in the suit property. In such view of the matter, it is found that the plaintiff is entitled for partition and separate

possession of 1/2 share in the suit property.

The only point that has been made in the written statement is that the share of the defendants should be so allotted that their share is facing

Vadivelu second cross street. However, as regards the particular share, to which, the parties are entitled to, the same can be worked out only

during the final decree proceedings and not at this stage of the matter.

In the light of the above discussions, I hold that the plaintiff and the defendants are the joint owners of the suit property. I further hold that the

plaintiff is entitled to obtain partition and separate possession of 1/2 share in the suit property. Accordingly, Issue Nos.1 & 2 are answered.

ISSUE NO.3

The plaintiff is entitled to obtain partition and separate possession of 1/2 share in the suit property. Accordingly, preliminary decree is granted in

favour of the plaintiff as prayed for. There is no order as to costs.