Decided on September 23,1969

S.SWAMY Appellant

Referred Judgements :-



- (1.)This appeal is directed against the order passed by the Third Additional Civil Judge, Bangalore, on IA. No. XVIII in OS. No.456/1964. The appellant is the plaintiff; the first defendant, who is now no more, was the father of the plaintiff; the second, third, fourth, fifth and sixth defendants are the plaintiff's brothers. The other defendants are the children of one or the other of the defendants. The plaintiff sought relief for a declaration that the deed of partition of 6-10-1952 is not binding on him and for cancellation of the same. He also sought for a declaration that he is entitled to 1/7th share in the immovable properties described in Schedule 'A' annexed to the plaint.
(2.)It may be mentioned that in paragraph 5 of the plaint the plaintiff states that his father was a dominating person and was held in great awe and respect by all his sons and he exacted implicit obedience from them. Prior to the document of 6-10-1952 there appears to have been a written agreement for partition on 18-7-1952. In June 1956 also there appears to have been an oral agreement for partition. In any event on 6-10-1952 a regular partition deed came into existence. The plaintiff's contention is that this document evidences an unfair and inequitable partition, wherein the properties allotted to the share of the second defendant are unjustifiably undervalued. The contention of the plaintiff is that the first and second defendants prevailed upon him and other brothers to enter into this partition. He therefore impeaches this partition and seeks a fresh partition of the joint family properties. In paragraph 22 (iii) of the plaint the plaintiff seeks relief in the following terms :
"Separate the plaintiff's share by metes and bounds and put him In exclusive possession thereof: and, in doing so allot to his share the properties allotted to his share at the partition of 6-10-1952 and a half share in premises Nos.10, 38 and 39, and vacant sites attached to premises Nos.38 and 39, Shantaveeriah's lane and allot immoveable properties at such value as to make Up the difference between 1/7th share in the schedule properties and the properties allotted to him at the partition of 6-10-1952. OR. declare that a sum of Rs. 1,08.077-00 or such amount as may be computed by the Court as the difference in value between 1/7th share of the plaintiff and the share allotted to him at the partition of 6-10-1962 be paid to the plaintiff out of the joint family estate."

(3.)His claim to a half share in premises Nos.10, 38 and 39 and vacant sites in Shanthaveeriah's lane referred to above is based on an agreement between himself and the other members of the family after the father made a gift of the said properties in favour of the second defendant by a gift deed dated 9-1-1956. The suit was instituted on 18-4-1958 and IA.No.18 was made on 25-3-1969, under Or.39, Rr.1 and 2 and S.151 of the CPC. He sought in the said apnlication an injunction against the second defendant and the proposed LRs. of the first defendant restraining them from putting any construction in the schedule premises. The premises referred to in the application is an item of property that fell to the share of the first defendant under the partition deed of 6-10-52. In the affidavit filed supporting this application, the plaintiff states that the second deiendant is trying to put up a construction in the schedule property. He has demolished the old structure that was existing. The proposed construction is estimated to cost Rs. 3 to 4 lakhs. If the plaintiff is to succeed in the suit he would be prevented from exercising his right over the portion of the schedule property since by that time the defendant would complete the construction and in the event of has succeeding in the suit it would take time to demolish the then existing structures, resulting in protracting his exercise of right over the property in which he claims a share. Further, it is alleged that if the defendant is to put up a massive construction on the schedule property he would be ha a position to plead equities in his favour which would prejudice, the plaintiff's right to get the schedule property allotted to him.

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