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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.