Madras High Court
Douglas Mendez vs Jerome R.Mendez on 9 November, 2020
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
1 C.S.No.288 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 09.11.2020
CORAM
THE HON'BLE MR. JUSTICE N. SATHISH KUMAR
C.S.No.288 of 2014
and A.Nos.1750 & 1751 of 2020
and 5590 of 2014
1. Douglas Mendez
2. Gladwin Mendez ... Plaintiffs
Vs.
Jerome R.Mendez ... Defendant
Prayer:- Plaint filed under Order IV Rule 1 of O.S. Rules read with Order
VII Rule 1 and Section 26 of the Code of Civil Procedure to
a) pass a preliminary decree for partition and separate possession of the
schedule mentioned properties by allotting the plaintiffs 2/3 share in the
same.
b) appoint an Advocate Commissioner to divide the properties by metes
and bounds and allot to the plaintiffs their respective 1/3rd share in the
suit schedule mentioned properties.
c) direct the defendant to pay to the plaintiffs the sum of Rs.67,14,600/-
towards past mesne profits and and continue to pay the mesne profits @
of Rs.15,000/- per month from the date of plaint till realisation.
http://www.judis.nic.in
2 C.S.No.288 of 2014
d) direct the defendant to render true and proper accounts of the business
carried on under the name and style R.Mendez & Sons
e) to pay the costs.
For Plaintiffs : Mr.M.K.Kabir
Senior Counsel
for Mr.T.Jayaraman
For Defendant : M/s.Saravana Sowmiyan
JUDGMENT
The suit has been filed for partition and for separate possession of the property by allotting 2/3rd share to the plaintiffs and for other reliefs.
2. The learned Senior Counsel appearing for the plaintiffs submitted that the property originally owned by the father of both the parties herein and he has left a Will dated 01.06.1988 thereby bequeathing the property giving a life interest to the tune of 1/3 rd share to each of the plaintiffs and the defendant and the vested remainder to their children. Therefore the suit has been filed for claiming 1/3rd share of the plaintiffs.
3. Admitting the Will, the learned counsel for the defendant http://www.judis.nic.in 3 C.S.No.288 of 2014 submitted that only the life interest alone to be shared, therefore the suit for partition is not maintainable and he further contended that father had an intention to retain the property together, therefore, any partition and demarcation will defeat the object of the Will. Therefore, the prayer for partition cannot be maintainable.
4. As the dispute is narrowed down, there is no dispute with regard to the 1/3rd share life interest to all sons and after their life time to their children. The preliminary decree can be passed based on the admission in the pleadings. There is no need to go for a trial. Admittedly life interest is given to all three sons and each son has right to retain 1/3rd share in the property. Absolute right will go to their children. Plaintiffs children together will get 2/3rd share after the life time of the plaintiffs. Similarly defendant's children will be getting 1/3rd together after the defendant's life time. Therefore it cannot be said that the property cannot be partitioned. Even during the life time, the plaintiffs and defendant can enjoy their respective shares given as a life interest for that purpose alone preliminary decree can be passed. Accordingly, preliminary decree is passed and the plaintiffs and defendant each are entitled to 1/3rd share to enjoy the property during their life time. The contention of the learned http://www.judis.nic.in 4 C.S.No.288 of 2014 counsel for the defendant that since the Will stipulates that the property should be kept intact cannot be countenanced for the simple reason that any condition restraining the alienation in respect of the property is void, similarly any restriction which is repugnant to interest created also can be ignored and void to that extent as per Sections 10 and 11 of the Transfer of Property Act. Such view of the fact, this suit is decreed for dividing the suit property into three equal shares and plaintiffs together are entitled for 2/3rd share, defendant also entitled for 1/3rd share, they can enjoy their respective shares during their life time, thereafter the property shall vest with their children as per the Will.
5. With the above observation, suit itself is decreed in terms of admission as to the rights to the parties as per order 12 rule 6 of CPC. Considering the relief there shall be no order as to costs. Consequently connected applications are also closed.
09.11.2020 Index: Yes/No Speaking order/Non speaking order dpq http://www.judis.nic.in 5 C.S.No.288 of 2014 N. SATHISH KUMAR, J.
dpq C.S.No.288 of 2014 and A.Nos.1750 & 1751 of 2020 and 5590 of 2014 09.11.2020 http://www.judis.nic.in