W.S.Rajasekar v. W.S.Rani (died) & Ors.

respondent/second defendant is the son of the first respondent/firstdefendant. The suit claim was made by the appellant based on hiscontention that suit 'A' schedule property was purchased under adocument registered as document No.257/1965 in the Office of the Sub-Registrar, Triplicane, Chennai by Mrs.M.K.Mohanambal, the mother ofthe appellant and the first respondent; that the said Mohanambal wasin possession and enjoyment of the suit 'A' schedule property tillher death on 04.10.1989; that her husband W.S.Sivabushanam (father ofthe appellant and the first respondent) pre-deceased Mohanambal andthat after the death of Mohanambal the appellant and the firstrespondent became entitled to equal moieties as her legal heirs. Theappellant/plaintiff contended further that the appellant wasoccupying the first floor whereas the first defendant was occupyingthe ground floor; that a tiled structure on the rear side of the mainbuilding, a Bombay terraced second floor and a shop portion in thefront portion of the main building in the ground floor had been letout to the tenants and that though the defendants had been collectingthe rent from the tenants, they failed to give the share of theappellant/plaintiff in the rental income. It was also his contentionmade in the plaint that due to hardships and deprivation caused bythe respondents/defendants and their family members which led tofrequent family quarrels between the two families, he was constrainedto file the suit for declaration, partition and other reliefs.3. The deceased first respondent/first defendant did not fileany separate written statement. On the other hand, she adopted thewritten statement of her son, namely the second respondent/seconddefendant. It was admitted in the written statement by the first andsecond respondents/defendants that the suit property was a self-acquired one of Mrs.M.K.Mohanambal (the mother of the plaintiff andthe first defendant) and that she died intestate on 04.10.1989. Butthe plaint allegation that the husband of Mohanambal predeceased herwas disputed and it was contended that the husband of Mohanambal diedon 27.12.1990. However, it was admitted that the deceased firstrespondent and the appellant/plaintiff became entitled to equalmoieties in the suit 'A' schedule property. It was contended by themthat the half share of first respondent/first defendant was settledby way of a registered settlement deed dated 13.01.1997 in favour ofthe second respondent/second defendant. However, it was contendedfurther in the written statement that the plaintiff, who was one ofthe directors of Lifeguard Medical Diagnostic Centre Private Ltd.,wanted a Power of Attorney from the respondent 1 and 2/defendant 1and 2 in respect of the properties inherited by them fromW.S.Sivabushanam (the father of the appellant and the firstrespondent) in favour of K.L.Jayakumar, Chairman cum ManagingDirector of the said company so as to enable him to give the saidproperties as security for raising loan for the business of LifeguardMedical Diagnostic Centre Private Ltd.; that the respondents gavesuch deeds of Power of Attorney in favour of one K.L.Jayakumar, sonof K.Loganathan, who is the director of the company; that the https://hcservices.ecourts.gov.in/hcservices/ respondent 1 and 2/defendant 1 and 2 did so in consideration of theappellant's relinquishment of his right to half share in the suitproperty and that after such relinquishment, the appellant/plaintiffbecame a permissive occupant of the first floor in the suit property.It was also contended by the defendants in the written statement thatsuch a relinquishment was oral; that having relinquished the share,the appellant/plaintiff was estopped from making any claim in respectof the suit property and that hence the suit for declaration,partition and other reliefs should be dismissed. 4. It was also contended by the defendants in the writtenstatement that the properties of W.S.Sivabushanam, the father of theplaintiff and the first respondent, would devolve upon all his legalheirs on his demise as per the settlement dated 15.02.1942 and thathence the sons and daughters of the appellant/plaintiff as well asthe children of the first respondent/first defendant were entitled toa share in the properties of W.S.Sivabushanam as co-owners and thatsince they were not made parties to the suit, the suit should bedismissed for non-joinder of necessary parties. It was also contendedtherein that the properties of late W.S.Sivabushanam were not madethe subject matter of the suit and hence the suit was liable to bedismissed on the ground that the prayer made therein was for partialpartition. 5. Based on the above said pleadings, the trial court framedfive issues which are as follows:-1. Whether the plaintiff has released his halfshare in favour of the first defendant?2. Whether this suit is bad for non-inclusion ofthe other properties of the parties?3. Whether the suit is bad for non-joinder ofnecessary parties?4. Whether the plaintiff is entitled for 1/2 shareby way of partition in the suit property?5. To what relief is the plaintiff entitled?6. The appellant/plaintiff figured as the sole witness (P.W.1)on his side and produced Ex.A1 in order to substantiate his case.The second defendant figured as the sole witness (D.W.1) and Ex.B1 toEx.B14 were marked on the side of the defendants. After both sideevidence were closed, the learned trial judge heard the argumentsadvanced on either side, considered the evidence in the light of sucharguments and upon such consideration, accepted the case of thedefendants regarding oral relinquishment of theappellant's/plaintiff's half share in the suit property. The learned https://hcservices.ecourts.gov.in/hcservices/ trial judge also held that the non-inclusion of properties ofW.S.Sivabushanam (father of the appellant and the first respondent)was also fatal to the plaintiff's case. Accordingly, in tune withthe said findings, the learned trial judge came to the conclusionthat the appellant/plaintiff was not entitled to the relief soughtfor and dismissed the suit by the impugned judgment and decree dated28.04.2005.7. Aggrieved by and challenging the said judgment and decree ofthe trial court dated 28.04.2005, the appellant/plaintiff hasbrought-forth this appeal on various grounds set out in theMemorandum of Appeal.8. During the pendency of the appeal, the first respondent/firstdefendant died and thereafter respondents 3 to 5 were impleaded intheir capacity as LRs of the deceased first respondent besides thesecond respondent, who was already on record in yet another capacity.9. The points that arise for consideration in this appeal are:-i)Whether it is true that the appellant/plaintiff orallyrelinquished his half share in the suit property in favourof the first respondent/first defendant?iii)Whether the suit is bad for partial partition?v)Whether the suit is bad for non-joinder of necessaryparties?vii)Whether the appellant/plaintiff is entitled to adeclaration that he is entitled to a common half share inthe suit property?ix)Whether the appellant/plaintiff is entitled to a decreefor partition as prayed for in the plaint?xi)Whether the appellant/plaintiff is entitled to mesneprofit?xiii)To what other relief the appellant/plaintiff isentitled?10. This court heard the arguments advanced by Mr.A.Muthukumar,learned counsel for the appellant, by Mr.T.Viswanatha Rao, learnedcounsel for the second respondent, by Mr.M.Jayasankar, the thirdrespondent who appeared as party in person, by Mr.K.Sukumaran,learned counsel for the fourth respondent and by Mr.M.Kumarasamy,learned counsel for the fifth respondent were heard. The materialsavailable on record were also perused. https://hcservices.ecourts.gov.in/hcservices/

11. The learned counsel for the appellant/plaintiff advancedarguments contending that the judgment of the trial court was aclassic example of non-application of mind showing perversity in thefinding; that the court below having framed five issues failed todecide all the issues assigning reasons for the decision; that thecourt below misdirected itself in accepting the interested testimonyof D.W.1 (second defendant) regarding the alleged oral familyarrangement in which the appellant/plaintiff relinquished his halfshare in the suit properties; that the court below failed to considerthe fact that the person competent to speak about the allegedrelinquishment, though alive, did not enter the witness box and thatadverse inference should have been drawn based on the failure on thepart of the first respondent/first defendant (since deceased) todepose in support of the defendants' claim of relinquishment. Thelearned counsel for the appellant contended further that the courtbelow failed to properly appreciate the fact that the first defendantin whose favour the alleged relinquishment was made by the plaintiff,did not file a separate written statement and on the other hand, shehad simply adopted the written statement filed by the secondrespondent/second defendant. The learned counsel for theappellant/plaintiff also contended that the trial court committed anerror in arriving at a conclusion that the suit is bad for partialpartition, as the properties of W.S.Sivabushanam (father of theplaintiff and the first defendant) were not included in the plaintschedule when the cause of action for seeking partition of the saidproperties and the cause of action relating to the properties of themother were different and disjunct and that the perversity of thefinding was writ large as the learned trial judge had not chosen togive specific finding regarding the issues, especially issue No.3. 12. The third respondent, who appeared as a party-in-person andthe learned counsel for the respondents 4 and 5 were fair enough toconcede that the plea of oral relinquishment and partial partitioncould not be sustained and that hence the appellant/plaintiff wouldbe entitled to a declaration and a preliminary decree for partitionas prayed for in the plaint. However, the learned counsel for thesecond respondent would contend that though the plea of non-joinderof necessary parties have not been substantiated, the finding of thetrial court sustaining the plea of oral relinquishment and the pleaof partial partition are well founded and hence they do not deserveany interference.13. Admittedly, the suit properties were the self-acquiredproperties of M.K.Mohanambal (mother of the appellant and thedeceased first respondent). It is also not in dispute that the saidMohanambal died intestate leaving behind her the appellant/plaintiffand the first respondent/first defendant (since deceased) as herlegal heirs. However, the plaint averment that the husband ofMohanambal predeceased her, has been disputed. According to the https://hcservices.ecourts.gov.in/hcservices/ defendants, W.S.Sivabushanam, the husband of Mohanambal diedsubsequently on 27.12.1990, namely subsequent to the death ofMohanambal. The same was admitted by P.W.1 in his evidence.However, it is admitted that on the death of Mohanambal, theappellant/plaintiff, first respondent/first defendant and theirfather W.S.Sivabushanam became entitled to the suit properties and onthe death of W.S.Sivabushanam, the appellant/plaintiff and the firstrespondent/first defendant alone became entitled to the suitproperties, each one having half share in it. However, the suit forpartition has been resisted on the ground that theappellant/plaintiff orally relinquished his right to share in thesuit property. It is the further contention of the respondents thatsuch relinquishment in respect of the suit properties was made by theappellant/plaintiff since the respondents 1 and 2/defendants 1 and 2relinquished their shares in the properties of W.S.Sivabushanam(father of the appellant/plaintiff and first respondent/firstdefendant). 14. Before ever considering the question of allegedrelinquishment, the plea of partial partition raised by thedefendants in the suit should be considered. Admittedly,W.S.Sivabushanam (father of the plaintiff and the first defendant)subsequent to the death of his wife M.K.Mohanambal and hence thesuccession to the properties of Mohanambal opened prior to the deathof Sivabushanam. It was not the case of the defendants in the suitthat the suit properties and the properties left by W.S.Sivabushanamwere the joint family properties and that the suit was filed fordivision of joint family properties. Admittedly, the property wasthe absolute property of Mohanambal and it devolved upon theplaintiff, the first defendant and their father on her death.Therefore, the cause of action for seeking division of the propertiesof M.K.Mohanambal on her death among her legal heirs is differentfrom the cause of action for claiming of the division of propertiesleft by W.S.Sivabushanam among his legal heirs. However, since ithas been admitted by P.W.1 that W.S.Sivabushanam (father of theappellant/plaintiff and the first respondent/first defendant) diedsubsequent to the death of Mohanambal and prior to the filing of thesuit and the suit has been filed by the plaintiff staking claim to1/2 share, the suit can be construed as one for the division of notonly the share of the plaintiff as a legal heir of his mother, butalso his share in the 1/3 share of his father. But the mere factthat the subsequent changes in the share of the parties due to thedeath of one of the legal heirs of Mohanambal will not change thecharacter of the suit as a suit for partition of the estate ofMohanambal. In addition to that, as per the averments found in thewritten statement, the properties that came into the hands of theappellant/plaintiff and the first respondent/first defendant afterthe death of Sivabushanam was not inherited by them by the rule ofsuccession provided in the Hindu Succession Act. On the other hand,the property came to them by virtue of the deed of settlement made by https://hcservices.ecourts.gov.in/hcservices/ the father of W.S.Sivabushanam, marked as Ex.B1. Under the saiddocument, only a life interest was given to W.S.Sivabushanam and thevested remainder was given to the sons and daughters ofW.S.Sivabushanam and the children of the deceased son or daughter ofW.S.Sivabushanam. Therefore, it is abundandly clear that the causeof action for claiming partition in respect of thesuit property andthe other properties cited by the defendants in their writtenstatement are not one and the same, but are different. Therefore,the contention of the defendants in the suit that the suit shouldhave been filed for the properties left by W.S.Sivabushanam alsodeserves to be rejected as untenable. Point No.ii is answeredaccordingly.15. The defendants in the suit had also contested the suit basedon their plea that the suit was not maintainable, as necessaryparties were not impleaded. According to them, the other sons anddaughters of first respondent/first defendant, who have now beenimpleaded as respondents 3 to 5 in the appeal as the LRs of thedeceased first respondent and the sons and daughters of theappellant/plaintiff should have been impleaded in the suit asnecessary parties, as all of them had a right to claim a share in theproperties left by W.S.Sivabushanam. It was their contention thatthe said properties originally belonged to W.S.Seshachala Gramani,paternal grandfather of the appellant and the first respondent, whoexecuted a settlement deed marked as Ex.B1 under which a lifeinterest alone was given to W.S.Sivabushanam (father of the appellantand the first respondent) and the vested remainder was directed to bedevolved upon the then existing legal heirs of W.S.Sivabushanam.There is an admission in the written statement that W.S.Sivabushanamdied on 27.12.1990 and he had only a son and daughter who were noneother than the appellant and the first respondent. However, thedefendants had also contended in the written statement that the sonsand daughters of the appellant and the first defendant were entitledto a share even during the life time of the appellant and the firstdefendant and hence they had pleaded that the suit was bad for non-joinder of necessary parties, as the children of the appellant andthe sons and daughters of the first respondent, namely respondents 3to 5 in the appeal were not made parties to the suit. A reading ofthe contents of Ex.B1-Will make it clear that the said contention ofthe defendants in the suit could not be countenanced. The documentclearly says that the Settlee therein, namely W.S.Sivabushanam wouldhave a life interest and after his death his legal heirs shallabsolutely take the property in stripes. The document has made itclear that all the sons and daughters of W.S.Sivabushanam would beentitled to equal share in the properties covered by Ex.B1.Provision has been made in the deed to the effect that in case anyson or daughter would have predeceased W.S.Sivabushanam, the issuesof such predeceased son or daughter would be entitled to the share ofsuch predeceased son or daughter, as the case may be. The relevantportion is extracted hereunder. https://hcservices.ecourts.gov.in/hcservices/ " NOW THIS DEED OF SETTLEMENT WITNESSETH that theSETTLOR hereby gives and grants to and unto andsettles upon the SETTLEE from after the life time ofthe SETTLOR a life interest in the immovableproperties mentioned and described in the Schedulehereunder written, TO HAVE AND TO HOLD the same forand during the life time of the SETTLEE after the lifetime of the SETTLOR:AND THIS DEED FURTHER WITNESSETH that after thelife time of the SETTLEE the said properties mentionedand described in the Schedule hereunder written shallpass absolutely to all the issue of the SETTLEE, theexpression 'ISSUE' including therein not only all thesons and daughters of the SETTLEE alive at the time ofthe death of the SETTLEE but also in the event of anyof the sons or daughters of the SETTLEE havingpredeceased the SETTLEE leaving the issue survivinghim or her, then including also such surviving issueof the deceased issue of the SETTLEE taking his or herplace, that is to say in other words, the saidimmovable properties described in the Schedulehereunder written shall be taken and enjoyed by thesaid issue of the SETTLEE after his death equally sothat a share will also be allotted to the issue of anypredeceased issue of the SETTLEE, such issue of thepredeceased issue taking as a class the share whichsuch predeceased issue would have taken if alive atthe time of the death of the SETTLOR:"16. A reading of the same will make it clear that after the lifetime of W.S.Sivabushanam, the property had to vest absolutely withthe issues of W.S.Sivabushanam and issues of the predeceased son ordaughter of W.S.Sivabushanam absolutely. Admittedly, the appellantand the first respondent were the only issues (sons and daughters) ofW.S.Sivabushanam. There was no other son or daughter either alive orpredeceased. Therefore, on the death of Sivabushanam each one of thembecame absolutely entitled to half share in the properties settledunder Ex.B1 as both of them were alive and the first respondent/firstdefendant was made a party in the suit. Therefore, even in respectof the properties of W.S.Sivabushanam, the plea of non-joinder ofnecessary parties must necessarily fail. Furthermore, it has beenheld supra that the suit is not bad for partial partition and theproperties of deceased W.S.Sivabushanam need not have been includedin the suit and since it is admitted that no other person than theappellant and respondents 1 and 2 did have a right in the suitproperties, the plea of non-joinder of necessary parties deserves tobe rejected as untenable. Point No.iii is answered accordingly. https://hcservices.ecourts.gov.in/hcservices/

17. So far as the suit properties are concerned, admittedly, thesame was the absolute property of M.K.Mohanambal. According to theplaint allegations, W.S.Sivabushanam predeceased his wife Mohanambal.But according to the averments found in the written statement he diedon 27.12.1990 that is subsequent to the death of Mohanambal. P.W.1in his evidence admitted the error committed by him in the plaintwherein it was stated that his father predeceased his mother. He hascandidly admitted in his evidence that his father Sivabushanam wasalive on the date of death of his mother Mohanambal and he died onlyafter the death of Mohanambal. According to the admitted case of theparties Mohanambal died on 04.10.1989 and her husbandW.S.Sivabushanam died on 27.12.1990. On the death of Mohanambal,besides the plaintiff and the first defendant, their fatherSivabushanam would have become a co-sharer along with them. However,it is also not in dispute that Sivabushanam also died intestate on27.12.1990. Therefore, his share would have devolved upon his sonand daughter, namely the plaintiff and the first defendant and thusthe plaintiff and the first defendant have become entitled to halfshare each. It is an admitted fact that the plaintiff and the firstdefendant, after the death of their parents were equally entitled tothe suit properties. The first respondent/first defendant seems tohave executed a settlement deed settling her half share in the suitproperty in favour of her son, namely the second defendant on13.01.1997. Ex.B8 is the said settlement deed. 18. The next contention of the second respondent is that thoughthe appellant/ plaintiff did have half share in the suit property, heorally relinquished the same in favour of the deceased firstrespondent/first defendant and that the deceased firstrespondent/first defendant in consideration of such a relinquishmentof the appellant’s share in respect of the suit property,relinquished her half share in the properties of her father. Thesaid contention of the second respondent has been stoutly refuted bythe appellant/plaintiff. In fact, as pointed out supra, the personin whose favour the alleged relinquishment was made, namely deceasedW.S.Rani, the first respondent/first defendant, did not file anyseparate written statement. The written statement was filed by thesecond respondent/second defendant alone and the same was adopted bythe first respondent/ first defendant. In addition to the failure onthe part of the first respondent to file a separate writtenstatement, she has also failed to enter the witness box and depose insupport of the defence plea that the half share of theappellant/plaintiff was orally relinquished by him in favour of thefirst respondent/first defendant. It was the second respondent/seconddefendant who figured as D.W.1 to depose in support of the above saidplea of oral relinquishment. However, D.W.1’s evidence in thisregard is far from being reliable. According to the testimony ofD.W.1, the appellant/plaintiff and the deceased firstrespondent/first defendant were the co-owners of the suit properties https://hcservices.ecourts.gov.in/hcservices/ before ever the first respondent/first defendant executed Ex.B8-Settlement deed in favour of the second respondent/second defendant.It has been candidly admitted by D.W.1 that till 13.01.1997, namelythe date on which Ex.B8-Settlement deed was executed in his favour bythe first respondent/first defendant, the appellant/plaintiff had notrelinquished his share in the suit property. Then, at what point oftime the alleged oral relinquishment was made by theappellant/plaintiff - there is no clear averment or evidence in thisregard. The second defendant relied on a Will allegedly executed bythe first respondent/first defendant, which was marked as Ex.B11.Ex.B11 was a document allegedly executed by the firstrespondent/first defendant, a couple of months prior to the filing ofthe suit. Such a document can be created at any point of time.Therefore, not much importance can be attached to the said document.Furthermore, even as per the recitals found in Ex.B11, the deceasedfirst respondent/first defendant executed a Power of Attorney on06.10.1997 in favour of K.L.Jayakumar, the Chairman and ManagingDirector of Lifeguard Medical Diagnostic Centre Private Ltd., inwhich the appellant was a director at the instance of theappellant/plaintiff. It has been stated therein that in considerationof the said Power of Attorney, the appellant/plaintiff gave up,relinquished and released all his rights, title and interest in thesuit property in favour of the first respondent/first defendant andthus the first respondent/first defendant became owner of half shareand the remaining half share as per Ex.B8-settlement belonged to thesecond respondent/second defendant. 19. Even though the document states that the relinquishment wasmade in consideration of the Power of Attorney executed in favour ofK.L.Jayakumar to mortgage the properties left by the father of theappellant and the first respondent, there is nothing to show that thefirst respondent relinquished her share in respect of the propertiesof her late father. It should also be noticed that originally thesuit was filed against the first respondent alone. Though Ex.B8-Settlement deed was executed in 1997 itself, the secondrespondent/second defendant did not choose to take steps to getimpleaded in the suit till 2003. Only in 2003 he got impleaded assecond defendant. There is an admission on the part of D.W.1 that hefiled the application for getting impleaded as a party-defendant onlyon the advice and instructions of his mother. The tenor of evidenceof D.W.1 suggests that the oral relinquishment was madesimultaneously with the execution of Power of Attorney in favour ofK.L.Jayakumar. But there is no acceptable explanation as to why theparties have not chosen to get a deed in writing executed. It ispertinent to note that Ex.B11-Will was attested by theappellant/plaintiff. If at all it was true that theappellant/plaintiff orally relinquished his share in the suitproperty in favour of the first respondent/first defendant, the firstrespondent/first defendant could have made him sign as a witness inthe Will, which she has not done. The preponderance and https://hcservices.ecourts.gov.in/hcservices/ probabilities will show that the alleged oral relinquishment of theappellant’s/plaintiff’s share in the suit property in favour of thefirst respondent/first defendant is not probable. 20. There is nothing to show that the first respondent/firstdefendant relinquished her share in favour of the appellant/plaintiffin respect of the properties of their late father so as to say thatthe said relinquishment was the consideration for the relinquishmentof the appellant’s/plaintiff’s share in favour of the firstrespondent/first defendant in respect of the suit property.Moreover, no mutation has been caused subsequent to the allegedrelinquishment of the share of the appellant/plaintiff in respect ofthe suit property in favour of the first respondent/first defendant.If at all it were true that the appellant/plaintiff relinquished hisshare in favour of the first respondent/first defendant, thereafterthe appellant/plaintiff would not have been allowed to continue to bein possession of a portion of the suit property without paying anyrent and thus acknowledging the title of the first respondent/firstdefendant. The explanation offered by the defendants that theappellant/plaintiff remained there in possession as a permissiveoccupant after the relinquishment, was nothing but an invention forthe purpose of the case. At least an acknowledgement showing suchpermissive occupationuld have been obtained. Same has not been done.Therefore, this court comes to the conclusion that the defendants hadnot proved by sufficient evidence their plea that theappellant/plaintiff relinquished his share in the suit property infavour of the first respondent/first defendant. The court below,without properly appreciating the evidence adduced on either side,came to an erroneous conclusion that the plea of relinquishment wasproved by the defendants. Moreover, the person in whose favour therelinquishment was allegedly made did not enter the witness box todepose in confirmation of such a plea. The same should have beentaken as a point giving rise to an adverse inference against thedefendants, which the court below has failed to do.21. For all the reasons stated above, this court comes to theconclusion that the finding of the court below that the plea ofrelinquishment made by the defendants had been proved by them isinfirm and defective and that the same deserves to be reversed bythis court in exercise of its appellate power. Moreover, therespondents 3 to 5 have conceded in this appeal that they cannotsubstantiate the plea of oral relinquishment. Therefore, it ishereby held that the finding of the court below regarding the saidissue deserves to be reversed. Point No.i is answered accordingly.22. The learned counsel for the second respondent expressed anapprehension that he may be deprived of his right to claim a share inthe properties of late W.S.Sivabushanam (father of the appellant andthe first respondent) since the appellant/plaintiff has not chosen toopenly admit the title of the first respondent to the half share in https://hcservices.ecourts.gov.in/hcservices/ the properties of her late father, the said apprehension seems to beunfounded. The case of the defendants that the first respondentorally relinquished her share in respect of the properties of herfather in lieu of the relinquishment of the appellant’s share in thesuit properties (properties of her mother), has not been eitheradmitted by the appellant/plaintiff or proved by the respondents 1and 2/defendants 1 and 2. As such appellant/plaintiff shall beestopped from contending that there was oral relinquishment of theshare of the first respondent/first defendant in respect of theproperties left by his father. The apprehension expressed by thelearned counsel for the respondents 3 to 5 seems to be misconceived.23. For all the reasons stated above, this court comes to theconclusion that the judgment and decree of the trial court dismissingthe suit of the appellant/plaintiff for declaration and partitioncannot withstand the scrutiny of this court; that the same cannot besustained in law; that the judgment of the trial court deserves to bereversed and the decree of the trial court dismissing the suit shouldbe set aside and that the suit should be decreed for the reliefs ofdeclaration and partition as prayed for and a declatory decree and apreliminary decree for dividing the suit property into two equalshares by meets and bounds and allotting one such share to theappellant/plaintiff should be granted. So far as the question ofmesne profit is concerned, the same has got to be relegated to bedecided either in the final decree proceedings or in a separateproceeding. Point Nos.iv to vii are answered accordingly.24. In the result, this appeal is allowed. The judgment of thetrial court is reversed and the decree of the trial court is setaside. The suit is decreed as prayed for. A decree declaring theappellant's/plaintiff's entitlement to 1/2 share in the suit propertyand a preliminary decree directing division of the suit property intotwo equal shares and allotment one such share to theappellant/plaintiff are granted. The consideration of question ofmesne profits is relegated, the same shall be the decision can bedeferred to be decided either in the final decree proceedings or by aseparate proceedings on an application to be filed in this regard.The parties are directed to bear their respective costs upto thisstage of proceedings.Sd/Asst.Registrar/true copy/Sub Asst.Registrarasr https://hcservices.ecourts.gov.in/hcservices/ To1. The Additional District and Sessions (Fast Track Court-IV), Chennai.2. The Section Officer, V.R.Section, High Court, Madras.1 cc To Mr.T.Viswanatha Raw, Advocate, SR.61266.1 cc To Mr.A.Muthukumar, Advocate, SR.61346.A.S.No.532 of 2006 PUR(CO)RVL 08.12.2009