Madras High Court
T.Suresh Surana vs T.Ashok Surana
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
RESERVED ON : 07.02.2017
DELIVERED ON : 24.02.2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CORAM
THE HON`BLE MR.JUSTICE N.SATHISH KUMAR
C.S.No.83 of 2011
T.Suresh Surana .. Plaintiff
vs.
1.T.Ashok Surana
2.T.Naresh Suranal
3.T.Rajesh Surana .. Defendants
Civil Suit filed under Order VII Rule 1 of CPC read with Order 4 Rule 1 of O.S. Rules praying for a preliminary decree declaring 1/4 share of the plaintiff in the suit schedules described properties;(b) to appoint an Advocate Commissioner to divide the suit D" described properties by metes and bounds and allot 1/4 share of the same to the plaintiff; (c) to direct the defendants to render true and proper accounts in respect of the rental income and investments and returns thereon from suit schedules "A", "B" and "C" described properties and for consequent direction to pay the 1/4 share of the same to the plaintiff; and(d) for the cost of this suit.
For Plaintiff : Mr.K.Ramu
For D1 and D3 : Mr.V.V.Giridharan
For D2 : Mr.T.S.Baskaran
J U D G M E N T
The suit is filed by the plaintiff praying for < share in the schedule mentioned properties.
2. It is the case of the plaintiff that the suit "A" schedule property was purchased by the grand father of the plaintiff and the defendants, viz., Gadmull Sowcar, by a registered sale deed dated 31.12.1943. Later, the suit "A" schedule property fell to the share of Tejmull Surana, who is the father of the plaintiff and defendants, by way of release deed dated 20.11.1967 and thus, father of the plaintiff and defendants became the owner of the suit "A" schedule property and was in possession and enjoyment of the same. The said Tejmull Surana, died intestate on 16.07.2003 leaving behind the plaintiff, the defendants and his wife Smt.Jawari Kumari Surana.
2.1.According to the plaintiff, rental income was derived from the suit "A" schedule property and from that income, they made investments by way of cash, gold and silver and also filed returns with Income Tax Department. The suit "A" schedule property was administered by mother, viz, Jawari Kumari Surana and the 1st and 3rd defendants. The said Jawari Kumari Surana, who is the mother of the plaintiff and the defendants, also died on 11.12.2010. The movable assets and articles are detailed in schedule "B" and "C". It is stated that the plaintiff and the defendants are entitled to <th share each over "A" "B" and "C" schedule properties. Since the defendants are denying the lawful rights of the plaintiff, the plaintiff is constrained to file this suit.
3. The defendants 1 and 3 have filed their written statement contending that the plaintiff and the defendants have settled their share in respect of the suit "A" schedule property in favour of their mother by way of Settlement Deed and thereby, she became absolute owner of the suit "A" schedule property. According to the defendants 1 and 3, their mother had not divided either her belongings or the belongings of the Hindu Undivided Family (HUF) and all the jewels, gold and silver articles were kept in the safe and lock condition and the same were under the custody of the mother. After the death of the mother, the plaintiff had unauthorizedly kept the keys of the safe under his custody and he refused to give the key. Therefore, it is for the plaintiff to provide the true accounts and inventory of all the jewels, gold and silver articles taken from the suit premises. The defendants 1 and 3 also submits that at no point of time they have refused the right of the plaintiff's share in the suit property. Further, the plaintiff had filed the above suit within a period of one month from the date of death of their mother. The situation for partitioning the suit property did not arise as alleged by the plaintiff. Hence, they prayed for dismissal of the suit.
4. The defendant No.2 has filed written statement along with counter claim under Order V Rule 1,6 of Original side Rules read with Order VIII Rule 1 6 A of C.PC., stating that he is also entitled for a share in the suit properties as claimed by the plaintiff. It is stated that the defendants 1 and 3 are refusing to render true and proper accounts of HUF and share the HUF Income. The defendant No.2 denied the statement that plaintiff and the defendants 1 and 3 settled the entire Schedule "A" described property in favour of their mother by way of settlement Deed. It is admitted that the mother had already divided all her gold and silver articles to the plaintiff and the defendants. It is stated that keys of the safe belongings of the mother was with defendant No.3. Hence the defendant No.2 prayed for <th share in the "A" "B" and "C" schedule properties and to render true and proper accounts in respect of rental income and investments thereon.
5. Based on the above pleadings, this Court framed the following issues, vide order dated 25.08.2011:
1.Whether the plaintiff is entitled to claim 1/4th share in all the plaint schedule properties?
2.Whether the plaintiff is entitled the relief of partition?
3.Whether the suit is bad for partial partition ?
4.Whether the defendants are liable to render accounts in respect of the rental incomes and investments made thereon?
5.To what other relief the parties are entitled?
5.1. By order dated 21.3.2013, this Court framed the following additional issue.
Whether the shares of the parties pleaded in the plaint is correct or not? 5.2 By order dated 09.4.2014, the following additional issue was framed by this Court.
Whether the suit is bad for partial partition as contended by the defendants 1 to 3?
6. On the side of the plaintiff, P.W.1 was examined and Exs.P1 to P19 were marked and on the side of the defendants, D.W.1 and D.W.2 were examined. Exs.C1 to C4 were marked. The details of the documents are as follows:
Exhibits produced on the side of the plaintiff:
S.No Exhibits Date Description of documents
1. P-1 31.12.1943 The certified copy of the sale deed executed by Dhanapal Chetty @ Kannan Chetty in favour of Mr.S.Gadmull Sowcar
2. P-2 20.11.1967 The certified copy of the release deed executed by Mr.G.Tejmal in favour of Mr.Gadmull Sowcar
3. P-3 28.07.2003 The death certificate of Mr. G.Tejmull Surana issued by the Birth and Death Registrar, Corporation of Chennai
4. P-4 30.10.2003 The certified copy of the settlement deed executed by Mr.Ashok Surana and 3 others in favour of Mr.Jewari Bai 5 P-5 11.02.2010 The death certificate of Mrs. Jewari Kumari Surana issued by the Birth and Death Registrar, Mahanagara Palika, Bangalore 6 P-6
-
The clients copy of the profit and loss account for the year ended 31.3.2007 of Sri.G.Tejmal Surana, HUF 7 P-7
-
The clients copy of the profit and loss account for the year ended 31.3.2008 of Sri.G.Tejmal Surana, HUF 8 P-8
-
The clients copy of the profit and loss account for the year ended 31.3.2007 of Smt.Jewari Kumari Surana, W/o. Tejmal Surana 9 P-9
-
The clients copy of the profit and loss account for the year ended 31.3.2008 of Smt.Jewari Kumari Surana, W/o. Tejmal Surana 10 P-10 03.01.211 The office copy of the complaint given by the plaintiff to the Inspector of Police, seeking protection 11 P-11
-
The receipt issued by Sub Inspector of Police for the receipt of the petition No.4 of 2011 lodged by the plaintiff.
12P-12 13.11.2010 The copy of the Insurance consent form issued by Mallya Hospital to Jewari Kumari Surana 13 P-13
-
The receipt issued by Mallya Hospital for payments made towards the treatment given to Jewari Kumari Surana 14 P-14 12.02.2010 The paper publication effected in Rajasthan Pathirika about the death of Smt.Jewari Devi Surana 15 P-15 13.02.2010 The paper publication effected in Rajasthan Pathirika about the death of Smt.Jewari Devi Surana 16 P-16 09.07.2011 The office copy of the letter written by the plaintiff's advocate to the counsel for defendants 1 to 3 17 P-17 28.12.2011 The notice received by plaintiff's counsel 18 P-18 14.11.2011 Letter from plaintiff's counsel calling upon the defendatns to produce certain documents 19 P-19 The letter sent by 3rd defendant to the plaintiff and his counsel Exhibits marked through Court S. No Exhibits Date Description of documents 1 C-1
-
The Computer print out of income tax returns and assessment orders of Mrs.Jewari Kumari Surana for the period 2003-2004 to 2010-2011 2 C-2
-
The Computer print out of income tax returns and assessment orders of Mrs.Jewari Kumari Surana for the period 2003-2004 to 2010-2011 3 C-3 The attested copies of income tax returns of M/s.Godmul Tejmal Surana for the assessment years 2004-2005 , 2005-2006 and 2009-2010 4 C-4 The copy of the deposit receipts issued by Mallaya Hospitals, Bangalore for the payment made towards treatment given to Mrs.Javarath Bai.
Witnesses examined on the side of the plaintiffs:
P.W.1. - T.Suresh Surana Witnesses examined on the side of the defendants D.W.1 T. Naresh Surana D.W.2 T.Rajesh Surana
7. Heard, Mr.K.Ramu, the learned counsel appearing for the plaintiff, Mr.V.V.Giridharan, the learned counsel appearing for the defendants 1 and 3 and Mr.T.S.Baskaran, the learned counsel appearing for the defendant No.2 and perused the records.
8. The learned counsel for the plaintiff submitted that admittedly, there is no dispute with regard to the share of the plaintiff in the "A" Schedule property. Similarly, the defendants 1 and 3, in the written statement, have not disputed the share of the plaintiff in "B" and "C" schedule properties. The only defence taken by the defendants 1 and 3 is that the suit is bad for partial partition. It is submitted by the learned counsel for the plaintiff that the mother of the plaintiff was holding some gold and silver articles and the same were also shown in the Income Tax Return filed for the period 2007 -2008. It is the specific case of the plaintiff that by way of oral partition, his mother divided those jewels to the plaintiff and the defendants equally during her life time and she died on 11.12.2010 at Bangalore. The defendants 1 to 3 were living together and they are in possession of "A" schedule properties.
9. It is further submitted by the learned counsel for the plaintiff that an Advocate Commissioner was appointed by this Court to break open the locker used by his mother, who, in turn, filed a report stating that no jewels were kept in the said locker. Further, the defendants 1 aand 3 also filed an application to amend the plaint for inclusion of the jewels set out in the Income Tax returns. The above application was also withdrawn by the defendants 1 and 3. Therefore, it is the submission of the learned counsel for the plaintiff that without establishing the availability of the jewels, now the defendants 1 and 3, cannot contend that the suit is bad for partial partition. The learned counsel for the plaintiff fairly submitted that in respect of other properties, share of the defendants have not been disputed by the plaintiff. Hence, the learned counsel prayed for passing a preliminary decree declaring 1/4th share in respect of "A" "B" and "C" schedule properties.
10. On the contrary, it is the contention of the learned counsel for the defendants 1 and 3 that the defendants 1 and 3 have not denied the share of the plaintiff in the suit properties. The only dispute is with regard to the jewels of HUF, which were not included in the suit. It is submitted by the learned counsel for the defendants that even in paragraphs "7" and "8" of the plaint, the availability of the jewels were admitted by the plaintiff himself. The allegation that jewels were divided during June 2010 has not been established by the plaintiff. Even in the cross examination, it is admitted by the plaintiff that there was no partition with regard to the jewels. The plaintiff has clearly proved the availability of the jewels by marking the Income Tax returns filed by his mother. Therefore, it is submitted by the learned counsel for the defendants 1 and 3 that the onus lies on the plaintiff to prove the alleged oral partition of the jewels. In the cross examination, the plaintiff admitted that he is in exclusive possession of house where his mother lived and hence those jewels were also sought to be included in the suit. Therefore, it is the submission of the learned counsel for the defendants 1 and 3 that the suit is bad for partial partition. Hence, the learned counsel prayed for dismissal of the suit. In support of his argument, the learned counsel for the judgments has placed reliance on the judgment reported in 2009 (9) SCC 52. (R.MAHALAKSHMI V. A.V.ANANTHARAMAN AND ANOTHER).
11. In the light of the above submissions, this Court recast the issues as follows:
1.Whether the plaintiff is entitled to claim 1/4th share in the suit schedule properties?
2.Whether the defendants are liable to render accounts in respect of the rental income and investments made thereon?
3.Whether the suit is bad for partial partition as contended by the defendants 1 to 3?
4. To what other relief the parties are entitled to?
Issue Nos.1 and 2:
12. The instant suit is filed for claiming < share in the "A" schedule property and 1/4 share in the rental income from HUF property viz., "A"schedule described property, investments in Shares, Sundry Debtors, cash in hand and bank, which are morefully described in "B" schedule property. Similarly, the plaintiff sought < share in the movable properties left by the plaintiff's and the defendants' mother, viz., Jawari Kumari Surana, which include cash balance in hand, and bank, shares in Tetrahdran Ltd., share in Tetrahadran Beverages Pvt. Ltd., loans advanced to one Simla Surana, wife of the 1st defendant herein. Further, the plaintiff sought rendition of accounts in respect of the rental income and returns thereof from the "A","B" and "C" schedule properties.
13. It is admitted by both sides, that originally, "A" schedule property was purchased by the father of the parties herein. It is also admitted by both sides that all the properties have been treated as HUF property. It is not in dispute that the "A" schedule property was devolved upon the father of the plaintiff and he was enjoying the same along with his sons as Members of HUF. It is also not in dispute that on 16.7.2003, the father of the plaintiff and the defendants died leaving the parties herein and his wife, by name, Jawari Kumari Surana. Similarly, it is also admitted fact that after the death of the father of the plaintiff and the defendants, the plaintiff and the defendants have settled their 1/5th undivided share of the A" schedule property to their mother, Jawari Kumari Surana. The said Jawari Kumari Surana, the mother of the parties also died on 11.12.2010. This fact is also not disputed.
14. It is the contention of the learned counsel for the plaintiff that though the properties are treated as HUF, all the investments, gold and silver articles and rental income are being administered by the defendants 1 and 3 and their mother, since the plaintiff was away from the suit property. In spite of the repeated demands by the plaintiff, the defendants 1 and 3 have not rendered accounts. It is the further contention of the learned counsel for the plaintiff that the movable properties left by the mother of the parties, are also available for partition, except gold and silver articles, which were already divided and given to the parties to the suit during June 2010. In fact, the defendants 1 and 3 and other brother of the plaintiff, i.e. defendant No.2 admitted <th share of the plaintiff in suit properties. It is contended that the plaintiff was never in exclusive possession of the movables and her mother was holding the movable properties, viz., gold and silver articles and hence, those properties are also to be included.
15. The only dispute between the parties is with regard to the availability of silver and gold jewels. Insofar as the other aspects are concerned, the defendants have no disputes. In fact, paragraph 14 of the written statement, the defendants 1 and 3 have pleaded that they are willing to share the rental income to the plaintiff herein and that at any point of time, they have refused to share the rental income with the plaintiff. In fact, in paragraph 8 of the written statement, they have clearly pleaded that it is always open to the plaintiff to verify the accounts of their mother and the defendants 1 and 3 did not prevent the plaintiff from verifying the accounts of their mother.
16. From the above admission made by the defendants 1 and 3 in the written statement, it is clear that the defendants 1 and 3 have no disputes with the plaintiff with regard to his share in respect of " A" "B" and "C" schedule properties. In this regard, it is useful to refer the evidence of D.W.2. D.W.2, in his cross examination has admitted as follows:
".. .. .. I admit that the plaintiff and the 2nd defendant are entitled to < share each in the suit schedule property. The 2nd defendant is also entitled to 1/4th share in the suit "A" schedule property and also entitled to render accounts in respect of suit "A" "B" and "C" schedule properties."
The above admission of the contesting defendants 1 and 3 in the written statement coupled with the evidence of the D.W.2, the third defendant herein, this Court can easily come to the conclusion that the plaintiff is, certainly, entitled for < share in the "A" schedule property. Similarly, the defendant No.2 has filed Court fee for declaring his right in the properties. Therefore, he is also entitled for < share. Though the defendants 1 and 3 have not filed Court fee, they are also entitled to < share each.
17. The plaintiff is, certainly, entitled for accounts in respect of "B" and "C" schedule properties. Though the plaintiff claims accounts in respect of the rents, the plaintiff has admitted in the cross examination that he had received rents for some period by way of Demand Draft sent by the defendants 1 to 3. Therefore, accounts in respect of the rents be produced during the final decree proceedings, after adjusting the amount already paid to the plaintiff. Similarly, D.W.2 in his cross examination, which is appended at page 31, has categorically admitted that his mother has invested a sum of Rs.50,000/- towards share capital of the company, viz., M/s. Tetrahedron Limited, Tetrahadron Bewerages pvt. Ltd., It is also admitted by D.W.2 in the cross examination that the capital of the company is Rs.25,00,000/- and that, the plaintiff and the 2nd defendant are entitled to < share each out of the shares invested by his mother. Similarly, he has also admitted that he has not given any dividends to the plaintiff or the 2nd defendant in lieu of their share out of his mother's share holding. Therefore, this Court is of the view the plaintiff, is entitled to < share in the B and C schedule properties also. Accordingly, the plaintiff and the defendants are entitled < share each in "A" "B" "C" schedule properties. The issues are answered accordingly.
Issue Nos.3 and 4:
18. It is the contention of the defendants 1 and 3 that the suit is bad for partial partition. Whereas it is the contention of the plaintiff that though his mother was owning gold and silver articles, as HUF property, the same were already partitioned and given to the sons during the year 2010, i.e. prior to the death of his mother. Therefore, it is the specific case of the plaintiff that those articles were not available now. Whereas, it is the contention of the defendants 1 and 3 in the written statement that their mother occupied the second floor of "A" schedule property and after the death of their mother, the plaintiff had unauthorsidely kept the key of the safe under his custody and, therefore, the defendants apprehend that the plaintiff would have illegally removed and kept all the belongings without the consent of the defendants. Similarly, in para 10 of the written statement, it is contended by the defendants 1 and 3 that when the mother went to Bangalore, all her valuable belongings and documents pertaining to suit property, receipts for the various tax payments made, valuables such as jewelleries, silver articles were locked in a room and she had taken the key along with her and after the death of their mother, the plaintiff refused to give the key. From the pleadings of the defendants in Paragraphs 9 and 10, it is very clear that it is not the definite case of the defendants that only the plaintiff took away the valuables of the HUF. Only they suspect that the plaintiff would have removed all the jewels , which are lying in the custody of the mother.
19. Though the plaintiff pleaded in the plaint that after his mother's death, he used to occupy the second floor of the "A" schedule property, the same is totally denied by the defendants in paragraph 6 of the written statement. In paragraph 6 of the written statement, it is stated that the plaintiff was never in possession of the second floor of the "A" schedule property as alleged by him and the second floor was used in common by all the co-sharers. Further, nowhere in the written statement, it is pleaded that all the jewels were taken away by the plaintiff. Whereas in the plaint, the plaintiff has specifically pleaded that his mother apportioned the jewels and given to all the legal heirs during the month of June 2010, i.e. prior to her death. Though the above contention with regard to the apportionment of jewels is denied in the written statement, it is to be noted that P.W.1 in his evidence, asserted that the jewels were apportioned in the year 2010, i.e.,during the life time of his mother. The above aspect was cross examined by the defendants 1 and 3 in the cross examination of P.W.1, which is appended at page 11. It is asserted by P.W.1 that at that time when the mother was dividing the gold jewels, he got 160 grams of Gold and about 2 = kg of silver belonged to HUF and herself.
20. That apart, D.W.1, defendant No.2 in his evidence has also admitted that his mother has given gold ornaments to all the legal heirs during June 2010. He has also asserted that he received 140 grams of gold and 3 kgs of silver approximately from his mother during her life time. Much emphasis was placed by the learned counsel for the defendants 1 and 3 to the effect that the defendants' mother has filed Income Tax return under Ex.P6, wherein in the year 2007 2008, she mentioned that as on 31.3.2007, she had 26.50 kgs silver and about 1090 grams of gold. Similarly, in the return filed as on 31.3.2008 she has mentioned the same amount of silver and gold. Likewise, in the return filed for 2008-2009, she has also given the particulars of shares in the Tetrahedran Limited and Tetrahadron Bevarages Pvt Ltd., as well as sundry debtors. The defendants 1 and 3, who are said to be managing the properties also paid some rent by way of Demand Draft to the plaintiff with proper accounts.
21. Contrary to the above statement, P.W.1, in his evidence has deposed that he was not appraised of any accounts in respect of his mother. The income tax returns, i.e. Ex.P6 and P7 shows the availability of gold and silver articles at the relevant time. Admittedly, the mother died only in the year 2010. It is not disputed by the parties. But, whether their mother retained the same amount of gold and silver till her death has not been established by the defendants 1 and 3. The plaintiff is all along residing at Bangalore and the same is not disputed. Though it is pleaded that after the death of his mother the plaintiff used to occupy the second floor, the same is totally denied by the defendants and in fact, D.W.2 in his evidence has admitted that they all had the keys of the second floor even after the death of his mother. Similarly, it is suggested to P.W.1 that when the defendant No.1 left the suit property, the same was occupied by the plaintiff and the defendant No.3. All these facts clearly indicate that the second floor, where their mother was living, was actually shared by all the co-sharers. That being the case, without establishing the fact that the so called jewels, which were actually in possession of the mother, were taken by the plaintiff and kept in his custody, this Court is of the view that the plea of partial partition is not maintainable.
22. Even in the written statement, the defendants 1 and 3 have not stated that the plaintiff had taken all the jewels. What they pleaded in the written statement is that they apprehend that the plaintiff would have taken the jewels. Whereas it is the specific plea of the plaintiff and the defendant No.2. that their mother had apportioned the jewels and given to the plaintiff and the 2nd defendant in the year 2010 itself.
23. It is curious to note that in A.No.2702 of 2013, which has been filed by the defendants 1 and 3 qua amendment of plaint to include gold and silver articles, this Court had appointed an Advocate Commissioner to take inventory by breaking open the two (2) bureaus, which were used by the mother of the parties, in order to find out whether any jewels were available for partition. Pursuant to the said direction of this Court, the Advocate Commissioner, who was appointed by this Court, in the presence of both counsels and all the parties concerned, inspected the properties and opened the alleged two bureaus, which were locked, with the aid of Mechanic, and filed a report dated 02.9.2013 indicating therein that no gold items or jewles and no silver articles were found in the said lockers. The aforementioned application was subsequently not pressed by the defendants themselves. Therefore, the same has been dismissed as not pressed by this Court , vide order dated 09.4.2014.
24. When the defendants all along pleaded in the written statement as well as in the counter affidavit filed in O.A.No.112 of 2011 in application No. 748 of 2011 that they are in possession of the second floor and that the possession was never handed over to the plaintiff at any point of time, now cannot contend that the plaintiff is in possession of jewels and the suit is bad for partial partition. Furthermore, the evidence of P.W.1 shows that jewels were partitioned and given by his mother even in the year 2010 itself to the parties.
25. It appears that the defendants were maintaining some accounts along with their mother. D.W.2 also admitted in the evidence that after the plaintiff left the suit property, he used to occupy the second floor along with his mother and the mother was under his care. He also admitted that mother is illiterate person and even she cannot sign in English and used to sign in Hindi. Further, his entire evidence clearly shows that he did not know who was signing the income tax return after his father's death. Further, he has also admitted that he did not know the particulars of movables items disclosed by her mother in her returns. It is also admitted that till her mother's death, he did not know the particulars of movables properties. Further, he also admitted that he used to collect rents and signed in the rent receipts and used to remit the amounts into bank account from the rental collection. All these evidence clearly indicate that in fact, D.W.2, the defendant No.3 herein, was managing the affairs of the suit property. If really, the jewels were available after his mother's death, he would have produced income tax returns of her mother to prove the same. But he failed to do so. All these facts clearly established that jewels were in fact, not available at the relevant time i.e. after 2010. Further in the absence of proof with regard to the possession of jewels by the plaintiff, the defendants cannot take a stand that the suit is bad for partial partition.
26. That apart, though D.W.2 has given undertaking to produce the income tax returns of late father and mother, he was not able to produce the same, since his auditor has removed the said file. He also admitted that the auditor told him that for the past three years, no returns were filed and the files were not available. This fact clearly indicate that prior to the death of the mother,HUF returns were not filed and jewels were not available for partition. Therefore, without establishing the availability of the jewels, the defendant cannot take the defence that the suit is not maintainable.
27. To substantiate the contention that the suit is bad for partial partition in view of the non inclusion of the so called jewels, the learned counsel for the defendants 1 and 3 relied on the judgment reported in 2009 (9) SCC 52. (R.MAHALAKSHMI V. A.V.ANANTHARAMAN AND ANOTHER), wherein the Hon`ble Apex Court has held as follows:
.. .. .. The matter deserved to be remanded to the trial Court on the following grounds:
(1)That all the properties that were inherited by the father of the parties by virtue of registered deed of partition dated 24.04.1954 have not been included in the partition suit. (2)The appellant herein had taken a consistent stand right from the very beginning that unless all the properties are included in the plaint, the suit would be bad and partial partition cannot be effected. .. .. .. The said judgment is not applicable to the facts of the present case. In the above judgment, immovable properties shown in prior Partition Deed have not been included in the suit. Therefore, the Hon`ble apex Court has held that those properties were also to be included and without including those properties the suit would be bad for partial partition. Whereas in this case, the availability of movable properties itself have not been established. Hence, the plea of the defendants that the suit is bad for partial partition cannot be sustained. The issues are answered, accordingly.
28. In view of the aforesaid circumstances, preliminary decree is passed dividing "A" schedule properties into "4" equal shares and allot one such share to the plaintiff and the defendant No.2. Similarly, the defendants 1 and 3 are also entitled to < share each in the A schedule properties. The plaintiff and the defendant No.2 is also entitled to < share in the B" and C schedule properties, after production of accounts and after adjusting the rent received by the parties, in the final decree proceedings. The defendants 1 and 3 are also directed to render true and proper accounts in respect of rental income and interest thereon from the suit schedule properties.
The suit is decreed on the above terms.
Ga 24..02..2017
Index : Yes/No
Internet : Yes/No?
N.SATHISH KUMAR, J
ga
Pre-delivery judgment in
C.S.No.83 of 2011
24..02..2017
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