Full Judgment Text
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PETITIONER:
K.M. SRINIVASAN
Vs.
RESPONDENT:
K.M. ARUMUGHAM
DATE OF JUDGMENT: 25/10/1996
BENCH:
K. RMASWAMY, S.P. KURDUKAR
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
We have heard learned counsel on both sides.
This appeal by special leave arises from the judgment of the
single Judge of the Madras High Court made on November 16,
1996 in Second Appeal No.1234/95.
Admittedly, the appellant and the respondent are
brothers. They inherited the property consisting of three
floors in Salainagar Koil Street, Madras. It would appear
that as per the partition deed the ground floor was required
to be enjoyed by both the parties. The partition deed dated
August 27, 1953 does disclose that the appellant and the
respondent have to enjoy the property in equal shares.
Though the recitals of the partition deed were not happily
worded, the fact remains that the respondent is in
possession of first floor and the appellant is in possession
of second floor. It is not disputed that the ground floor
was converted into shops and the appellant is in possession
of one portion and the respondent in two portions through
tenants.
The question, therefore, is in what manner the property
are required to be enjoyed in equal shares? The High Court
relying upon the recitals in the partition deed had
concluded that the ground floor was allotted to the
appellant while the first and second floor were allotted to
the respondent. Consequently, it reversed the judgment and
decree of the appellate Court and confirmed that of the
trial Court. On perusal of the partition deed, it is clear
that the view of the High Court is not correct. It is seen
that the ground floor was allotted to both the appellant and
the respondent for common enjoyment and first floor was
allotted to one party and second floor was allotted to
another party. First floor is in the possession of
respondent consisting of 532 sq.ft. with four rooms while
admittedly the second floor consisted of one room with open
terrace. Under these circumstances, the property is required
to be enjoyed by the brothers in equal shares and re-
partition is required to be done in accordance with the
available rooms and property situation. Under these
circumstances, the judgments and decrees of the High Court,
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appellate Court and the trial Court stand set aside. The
trial Court is directed to appoint an Advocate Commissioner
to inspect the area and work out the partition in such a way
where both the parties would enjoy the property in equal
share. The matter is remitted to the trial Court.
The appeal is accordingly allowed. The trial Court
would do the exercise within a period of six months from the
date of receipt of this Court’s order. No costs.