Madras High Court
Annalakshmi vs Monika
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 29.10.2018
DELIVERED ON : 30.10.2018
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
A.S.(MD)No.181 of 2015
and M.P.(MD) Nos.1 & 2 of 2015
1.Annalakshmi ... Appellant/ 1st Respondent/
1st Defendant
2.Muneeswaran ...2 Appellant/ 4 Respondent/
nd th
4th Defendant
Vs.
1.Monika
2.Murugan ...Respondents /Petitioners /
Plaintiffs
3.Rani
4.Vijay
5.Saravanan
6.Properietor A.V.M.Handlooms,
Door No.97, Palam Station Road,
Sellur, Madurai-625 002.
7.State Bank of India,
Through its Branch Manager,
Yanaikkal 2289,
Amman Sannathi Street,
Madurai-1. ... 3 to 7 Respondents /
Respondents 2, 3, 5 to 7 /
Defendants 2, 3, 5 to 7
cause title amended as per order dated 14.09.2018 in C.M.P.(MD)No.6364
of 2017 in A.S.(MD)No.181 of 2015.
PRAYER: Appeal Suit is filed under Section 96 read with Order 41 Rule 1
& 2 of the Code of Civil Procedure to set aside the Decree and Judgment
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passed in I.A.No.20 of 2009 in O.S.No.368 of 2004 on the file of the IV
Additional District Court, Madurai dated 23.02.2015.
For Appellants : Mr.R.Vijaykumar
For R1 & R2 : Mrs.P.Jessi Jeeva Priya
For R3 : Mr.S.Rajasekar
for M/S.T.Lajapathy Roy
For R5, R6 : No Appearance
For R7 : Mr.Anand C.Rajesh
JUDGMENT
This appeal has been filed by the plaintiffs against the order dated 23.02.2015 passed in I.A.No.20 of 2009 in O.S.No.368 of 2004 by the learned IV Additional District Judge, Madurai. The said Interlocutory Application had been filed under Order 20 Rule 12 and under Order 26 and Rules 9 & 10 and under Section 151 C.P.C for passing final decree pursuant to a preliminary decree passed in a suit seeking partition, separate possession and mesne profits. The appellants herein were the defendants 1 and 4 in the said suit. The appellants are spouses.
2.The suit in O.S.No.368 of 2004 had been filed by Monicka, her father Murugan. The suit was filed seeking partition of A & B schedule properties by allotting 1/3 share to the plaintiffs. The suit came up for consideration before the I Additional District court (Fast Track), Madurai and by Judgment and Decree, dated 12.10.2007, a preliminary decree was http://www.judis.nic.in 3 passed granting 1/3 undivided share to the plaintiffs in Item Nos.1 and 2 in the A schedule and also for the property in B schedule. The suit was dismissed with respect to Item Nos.3, 4, 5 and 6 in A schedule property. The suit was dismissed as against the fifth and sixth defendants.
3.The parties were thereafter, directed to apply for final Decree under Order 20 Rule 12 of C.P.C. Accordingly, the plaintiffs filed I.A.No.20 of 2009 under Order 20 Rule 12 C.P.C and also under Order 26 Rules 9 & 10 seeking appointment of an Advocate Commissioner to divide the properties and allot 1/3 share to the plaintiffs. This application was considered by the learned Fourth Additional District Judge, Madurai. An Advocate, Mr.V.Vasudevan was appointed as Advocate Commissioner. Warrant was issued to him to execute the work of division of the suit property, in accordance with preliminary decree and file a report. The Advocate Commissioner had filed a report recording the valuation of the properties, for which, the plaintiffs were allotted 1/3 share. Item No.1 of A schedule property was valued at Rs.7,65,000/-. Item 2 in A schedule property was valued at Rs.12,65,759/-. The B schedule property was valued at Rs.6,22,932/-. The Advocate Commissioner therefore, found that the total value of all the three properties was Rs.26,53,691/-. The plaintiffs were allotted 1/3 share of Rs.26,53,691/- which came to Rs.8,84,560/-. The Advocate Commissioner allotted Item No.1 of suit property, which was valued at Rs.7,65,000/- entirely to the plaintiffs.
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4.It had been further recorded in the order of the Fourth Additional District Judge that the learned counsel appearing for the plaintiffs submitted that the difference amount of Rs.1,19,560/-, namely, difference between Rs.8,84,560/- and the value of first Item of suit property, namely, Rs.7,65,000/- can be paid as ovelty by money. The defendants did not object for allotment of the Item No.1 of the A schedule property to the plaintiffs. Therefore, a final decree was passed allotting Item No.1 of A scheduled property valued at Rs.7,65,000/- to the plaintiffs and a further direction was passed that the defendants should pay the balance amount of Rs.1,19,560/- together with interest to the plaintiffs. To ensure that the amount was paid, a charge was created on the Item No.2 of A scheduled property and on the B scheduled property.
5.Challenging this order, the first and fourth defendants have filed an appeal. Mr.R.Vijayakumar, learned counsel appearing for the appellants submitted that the ovelty amount was directed to be shared by the first and second defendants in the suit. He pointed out that the appellants, who are in possession of B scheduled property, cannot be mulcted with such payment since they are not earning any income from the B scheduled property. On the other hand, the 2nd and 3rd defendants / 3rd and 4th respondents, who are in possession of the Item No.2 of A scheduled property are earning substantial rental income from the said property. The http://www.judis.nic.in 5 said property is a three storeyed three shopping complex. It was stated that the 2nd and 3rd defendants have not filed any appeal against the order passed in I.A.No.20 of 2009, dated 23.02.2015. According to Mr.R.Vijayakumar, this would mean that the 2nd and 3rd defendants have accepted their liability to pay one half of the ovelty amount of Rs. 1,19,560/-. The learned counsel further submitted that calling upon the first defendant to pay the other half share is unreasonable since the first defendant is not earning any income from the property.
6.Mrs.P.Jessi Jeeva Priya, learned counsel for the plaintiffs / 1st and 2nd respondents on the other hand, submitted that the plaintiffs have still not got the possession of first item of A scheduled property which had been allotted to them by Court and they have not even been paid the ovelty amount as directed by the trial Court.
7.Mr.Rajasekar, learned counsel representing Mr.Lajapathy Roy, learned counsel appearing for second and third defendants sought time to get instructions from his clients regarding the payment of ovalty. Since the matter has been adjourned for a considerable period of time, I hold that, taking into consideration the interest of the appellants and more particularly the 1st and 2nd respondents, an order has to be passed giving quietus to the entire issue.
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8.Accordingly, the second and third defendants, who are the third and fourth respondents herein are directed to pay a total amount of Rs.90,000/- as ovalty to the plaintiffs, who are first and second respondents and hand over the possession of the item No.1 of A schedule property. Charge over the B scheduled property is removed. However, charge would continue over item No.2 of the A schedule suit property. The total amount payable is Rs.90,000/-. This amount is arrived at by the Court to ensure that possession is taken by the plaintiffs in the suit and that the parties can settle all the issues once for all. More over, the second and third defendants are enjoying substantial rental income from item No.2 of A schedule property and conversely the rental income is being denied to the appellants. Therefore, it would only just and proper that the burden of paying ovalty shall be mulcted only to the second and third defendants. However, entire the ovalty is not directed to be paid by them. In order to ensure the fairness, the amount is reduced to Rs.90,000/-. It is therefore, directed as follows:
(i)Rani and Vijay, who are third and fourth respondents herein are directed to pay a sum of Rs.90,000/- to Monika and Murugan, who are first and second respondents herein on or before 30.11.2018. The possession of first item of A scheduled property is also to be handed over to the 1st and 2nd respondents http://www.judis.nic.in (ii)If the amount of Rs.90,000/- is not paid on or before, 30.11.2018, 7 the 1st and 2nd respondents / plaintiffs herein are at liberty to file execution petition seeking compliance in accordance with order in I.A.No.20 of 2009 and seeking part of ovalty amount of Rs.1,19,560/- together with interest @ 7.5% per annum from the date of order i.e. 23.02.2015 till the payment.
They are at liberty to proceed against the charge created against the second item of A scheduled property. Charge against B scheduled property is removed.
9.The Appeal Suit is allowed, with the above observations. The appellants are not mulcted with payment of ovelty as directed by the learned Fourth Additional District Judge and the charge against the B scheduled property is removed. It is made clear that if the amount of Rs.90,000/- is not paid by the third and fourth respondents / second and third defendants, the 1st and 2nd respondents / plaintiffs can file execution petition against them to recover the ovalty amount as fixed by the learned trial Judge and proceed against the charge created over the second item of A scheduled property. Connected Miscellaneous Petitions are closed. No costs.
30.10.2018
Index :Yes/No
Internet :Yes/No
gns
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C.V.KARTHIKEYAN, J.
gns
To
1.The Fourth Additional District Court,
Madurai.
2.The Record Keeper,
VR Section,
Madurai Bench of Madras High Court, Madurai.
Pre-delivery Judgment made in
A.S.(MD)No.181 of 2015
30.10.2018
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