Vs. K.M. Arumugham  INSC 1332 (25 October 1996)
O R D
have heard learned counsel on both sides.
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.
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
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.
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, 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.
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.
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