KAMALA Vs. RAMACHANDRAN

JUDGEMENT

(1.) AS against the order passed in I. A. No. 6 of 2005 filed by the defendants 1 and 2 directing the Advocate Commissioner to divide the suit property as per the decree of the High Court dated 4. 7. 2002 made in A. S. No:1300 of 1998, the plaintiffs have preferred this revision.

(2.) THE brief facts of the case i s as follows:- (a) One Balakrishnapillai had three sons namely 1)Ramachandran, 2) Nandakumar and 3) Sambandam. THEy jointly purchased the property situate din R. S. No. 385/2, Easaniya Thope Street, Sirkazhi Town on 6. 10. 1973 under a registered sale deed, and each of them being entitled to 1/3rd share. (b) Subsequently Sambandam died on 25. 8. 1983 leaving behind his mother Mangayarkarasi, wife Kamala, daughter Rajalakshmi and son dr. B. Shanmugham and according to the plaintiffs he had executed a Will on 7. 4. 1983 settling 1/3rd share of the suit properties to the son, the third plaintiff in the suit. But according to the defendants the said Sambandam died intestate on 25. 8. 1983 leaving behind them and each of them entitled to 1/4th share in his 1/3rd share. (c) While that being so, the plaintiffs filed the suit in o. S. No. 38 of 1985 before the Principal Subordinate Judge, Myladuthurai for partition claiming 1/3rd share over the suit property. THE trial court by order dated 19. 8. 1987 passed a preliminary decree granting 7/24th share to the plaintiffs. As against which the defendants preferred Appeal in A. S. No:1300 of 1988, before this Court. By order dated 4. 7. 2002, this court modified the preliminary decree passed by the trial court and granted 1/4th share to the plaintiffs instead of 7/24th share. THE defendants were granted 2/3rd share. THE remaining 1/12th share was allotted to the mother of the defendant s viz. , Mangayarkarasi. (d) According to the defendants, the said Mangayarkarasi had earlier executed a registered Will dated 12. 2. 1986, bequeathing all her properties in favour of the second respondent and she died on 27. 3. 2002. After her death the second defendant became entitled to 5/12th share over the suit property. THE first defendant is entitled to 4/12th share. THE plaintiffs are entitled to the remaining 3/12th or 1/4th share. THErefore the defendants filed i. A. NO ; 6 of 206 for passing of final decree in respect of their 4/12 + 5/12 =3/4th share. In that application, by order dated 4. 8. 2005 an Advocate Commissioner was appointed for dividing the suit property by metes and bounds. THE Advocate Commissioner also in pursuance of the warrant issued to him inspected the suit property, made the division and submitted his report on 20. 6. 2006. It is as against the said order passed in the Interlocutory application, this revision has been preferred.

(3.) IN AIR 1965 SC 1049 (Daya Ram and others Vs. Shyam sundari and others) the Hon'ble Supreme Court held that "where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, the impleaed legal representatives sufficiently represent the state of the deceased and a decision obtained with them on record wil bind not merely those impleaded but the entire estate including those not brought on record. "