Civil Suit Nos. 185 of 2012, 522 of 2013, O.A. No. 242 of 2012, A. No. 896 of 2013 in C.S. No. 185 of 2012 and O.A. No. 571 of 2013 in C.S. No. 522 of 2013. Case: T.A. Mohan Vs N. Jitendra Kumar and Ors.. Chennai (Madras) High Court

Case Number:Civil Suit Nos. 185 of 2012, 522 of 2013, O.A. No. 242 of 2012, A. No. 896 of 2013 in C.S. No. 185 of 2012 and O.A. No. 571 of 2013 in C.S. No. 522 of 2013
Party Name:T.A. Mohan Vs N. Jitendra Kumar and Ors.
Counsel:For Appellant: S.A. Rajan, Adv. and For Respondents: G. Veerapathiran, Adv.
Judges:G. Chockalingam, J.
Issue:Code of Civil Procedure, 1908 (CPC) - Order II Rule 2; Order VIII Rule 1; Partition Act, 1893 - Section 4; Transfer of Property Act, 1882 - Section 44
Judgement Date:November 23, 2015
Court:Chennai (Madras) High Court
 
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Judgment:

G. Chockalingam, J.

  1. Civil Suit No. 185 of 2012 is filed by the plaintiff for grant of permanent injunction restraining the defendants 1 to 3 from interfering with the physical possession of the suit property either by themselves or by their agents, servants, hirelings and others and to direct the defendants to pay the costs of the suit including advocate's fee.

  2. Civil Suit No. 522 of 2013 is filed by the plaintiffs for partition and separate possession of the plaintiffs' 2/3 share of suit property, by metes and bounds by appointing an Advocate Commissioner to allot the same to the plaintiffs by passing a preliminary decree, for permanent injunction restraining the defendant, his men, agents, servants or anybody from encumbering, alienating or demolishing the existing building in the suit property and for the costs of the suit.

  3. It is the case of the plaintiff in C.S. No. 185 of 2012, who is the defendant in C.S. No. 522 of 2013, that the suit property belonged to T.D. Aiyaswamy, who was the Secretary of Tamil Nadu Public Service Commission and he purchased the suit property by sale deed dated 13.09.1996 and had put up large dwelling unit on the property from out of his self-acquisition; on his death, his legal heirs, including the plaintiff, inherited the suit property in equal shares, as the deceased T.D. Aiyaswamy and his legal heirs are Hindus. As Mrs. Meenakshi, the wife of the deceased T.D. Aiyaswamy, died, the sons and daughters of the deceased T.D. Aiyaswamy inherited the suit property with equal shares having 1/9 share in the suit property. Mr. T.A. Thayumana Sundaram, brother of the plaintiff and Mr. T.A. Gnanasundaram, another brother of the plaintiff, released their 2/9 share, by document dated 17.02.2010 in favour of the plaintiff herein. Thus, the plaintiff acquired right and title to the extent of 1/3 share in the suit property and as on date, the plaintiff is the owner of the undivided 1/3 share in the suit property. The other shareholders who are owing 2/3 undivided share in the suit property are Mr. T.A. Tirumalai (son of the deceased T.D. Aiyaswamy), Mrs. Kanthimadhi (daughter of the deceased T.D. Aiyaswamy), Mrs. Rajamani (daughter of the deceased T.D. Aiyaswamy), Mrs. R. Kalavathy (daughter of the deceased T.D. Aiyaswamy), Mr. T.A. Durairajan (son of the deceased T.D. Aiyaswamy) and Mr. T.A. Shanmuganandam (son of the deceased T.D. Aiyaswamy). It is further stated that Mrs. Rajamani and Mrs. Kanthimadhi (daughters of the deceased T.D. Aiyaswamy) died, leaving behind their respective legal heirs. Mr. T.A. Tirumalai (one of the sons of the deceased T.D. Aiyaswamy) also died, leaving behind his legal heirs. It is the further case of the plaintiff that Mr. T.A. Shanmuganandam sold his 1/9 undivided share in the suit property to an outside purchaser, who is the first defendant herein, by sale deed, dated 08.07.2011. The legal heirs of Mrs. Kanthimadhi, one of the deceased daughters of the deceased T.D. Aiyaswamy, the legal heirs of Mr. T.A. Tirumalai, who is one of the sons (who is deceased) of the deceased T.D. Aiyaswamy and Mr. T.A. Durairajan, one of the sons of the deceased T.D. Aiyaswamy, sold their 3/9 (1/3) undivided share in favour of the second and third defendants jointly by sale deed dated 24.08.2011. The legal heirs of Mrs. Rajamani, one of the deceased daughters of the deceased T.D. Aiyaswamy, and Mrs. R. Kalavathy, one of the daughters of the deceased T.D. Aiyaswamy, sold their 2/9 undivided share by sale deed dated 24.10.2011 in favour of the defendants 2 and 3.

  4. The plaintiff in C.S. No. 185 of 2012 further state that the defendants 1 to 3 have become 2/3 undivided shareholders of the suit property, of which, the plaintiff has 1/3 undivided share. As the defendants 1 to 3 are outside purchasers and not the members of undivided family, the plaintiff is entitled to seek partition against the defendants and to claim other reliefs. The plaintiff is a medical practitioner in United States. The property is wholly occupied by the plaintiff, as the other shareholders sold their shares. The property is managed by the Power Agent of the plaintiff and the plaintiff's representative is in physical occupation of the property. The plaintiff, his wife and his relatives often visit Chennai and stay in the suit property, as the same is in their enjoyment and possession. Taking advantage of the fact that the plaintiff is in United States and that the property is managed by his agent and taken care of by the caretaker of the plaintiff, the defendants 1 to 3 are attempting to trespass into the suit property and planned to demolish the existing superstructure. The suit property is a dwelling house, which belonged to an undivided family and the plaintiff is a co-sharer who is in occupation of the entire suit property and as the suit property is not divided by metes and bounds by the other legal heirs of the father of the plaintiff, the plaintiff is entitled to protect his possession of the suit property as against the defendants.

  5. It is further stated by the plaintiff in C.S. No. 185 of 2012 that when he knew about the sale made in favour of the first defendant, the plaintiff filed C.S. No. 709 of 2011 for partition as against the first defendant and the other co-sharers and since subsequent to the filing of the said suit, the other co-sharers sold their shares in favour of the defendants 2 and 3, the said suit does not survive and hence, this suit in C.S. No. 185 of 2012 is filed for the relief stated supra.

  6. It is seen from the records of this Court that the said suit in C.S. No. 709 of 2011 was dismissed as withdrawn on 19.04.2012.

  7. The defendants in C.S. No. 185 of 2012 filed written statement under Order 8 Rule 1 CPC and under Order 5 Rule 1 of the Madras High Court Original Side Rules, and the defendants in C.S. No. 185 of 2012 are the plaintiffs in C.S. No. 522 of 2013, and they state that the suit in C.S. No. 185 of 2012, filed for bare injunction, is not maintainable in law and on facts, that the Power Agent is not entitled to file the suit, that the defendants are not aware of C.S. No. 709 of 2011 filed by the plaintiff for partition and the orders passed thereon, that the suit is not maintainable under Order 2 Rule 2 of CPC, that the suit is barred by res-judicata, that the suit property is not a HUF property, that the suit property originally belonged to T.D. Aiyaswamy, who purchased it from Venkatesapuram Cooperative House Construction Society Limited, under sale deed dated 13.09.1996, that after purchase, the said T.D. Aiyaswamy constructed the building, that the said T.D. Aiyaswamy died intestate on 09.05.1984 leaving behind his wife and six sons and three daughters as legal heirs, each of whom are entitled to 1/10 share in the suit property, that after the death of his wife, who died intestate on 09.07.1992, after which, surviving legal heirs became entitled to 1/9 share each, that the legal heirs of the deceased son and daughters of the deceased T.D. Aiyaswamy inherited their respective shares and that the brothers of the plaintiff, namely Mr...

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