SELLAMMAL Vs. NATARAJAN

JUDGEMENT

(1.) THIS appeal suit is directed against the judgment and decree dated 17.3.1987 made in O.S.No.177 of 1986 by the Court of Subordinate Judge, Namakkal, thereby decreeing the suit for partition and separate possession as prayed for.

(2.) TO trace the history of the case, the respondents in this appeal have filed the suit before the trial court praying for partition and separate possession of the suit properties, which are landed properties falling under many survey numbers and patta numbers 109, 110 and 330 of Vasanthapuram Village of Namakkal Taluk on averments such as that the plaintiffs 1 and 2 are the sons of the 1st defendant and the 3rd plaintiff is the mother of the defendants 1 and 2; that the suit properties are the common properties belonging to the joint Hindu family consisting of the plaintiffs and the defendants 1 and 2 they being the members of the joint Hindu family; that the father of the defendants 1 and 2, who is the husband of the 2nd plaintiff named Petha Boyan died 15 years back and on the date of death of Petha Boyan, there was a notional partition; that the plaintiffs and the defendants 1 and 2 are in common enjoyment of the suit properties; that as per the Hindu Succession Act in the share of the 1st defendant, the plaintiffs 1 and 2 have 1/3rd share each that is 4/27th shares in the whole of the suit properties in toto; that the plaintiffs 1 and 2 are entitled to 4/27th, 1/9th and 11/27th shares; that it is learnt that the defendants 1 and 2 have entered into some sore to agreement to sell the suit properties in favour of the defendants 3 to 6; that the defendants cannot sell away the 11/27th shares which belong to the plaintiffs 1 and 2 and hence, the plaintiffs demanded and requested the defendants 1 and 2 on 30.5.1986 for partition of the suit properties and allot their shares, but they refused to do so; that it is reliably understood that the defendants 1 and 2 have sold away some of the properties of the suit schedule, which they are not entitled to and hence, the suit for partition and separate possession of the plaintiffs 11/27th shares and put them in separate possession of such divided and allotted shares to the plaintiffs.

(3.) BASED on the above issues framed, the lower court would conduct a full-fledged trial, in which on the part of plaintiffs, 2 witnesses would be examined for oral evidence as P.Ws.1 and 2 among whom P.W.1 is the 1st plaintiff and on the part of the defendants the 3rd defendant would examine herself as D.W.1. For documentary evidence 3 documents would be marked on either side as Exs.A-1 to A-3 and Exs.B-1 to B-3. So far as the documents marked on the part of the plaintiffs are concerned, Ex.A-1 is the patta No.330 granted in favour of Sriranga Boyan, Ex.A-2 is the copy of the sale deed dated 29.1.1976 by Veerasamy and others in favour of Marappa Gounder for a sale consideration of Rs.2,000 and Ex.A-3 is the another sale deed dated 31.12.1981 by Veerasamy and others in favour of Boopathy for a sale consideration of Rs.1,000. So far the documents marked on the part of the defendants are concerned, Ex.B-1 is the sale deed dated 16.5.1986 for a sale consideration of Rs.35,000 executed by Veerasamy and another in favour of Sellammal, Ex.B-2 is the another sale deed dated 29.8.1974 for a sale consideration of Rs.6,000 executed in favour of Veerasamy and another by Sriranga Boyan and Ex.B-3 is the copy of the Chitta dated 25.6.1986 given in favour of Sellammal. With these evidence placed on record, the court below having assessed the merit of the case in the light of the evidence placed, would not only arrive at a conclusion to hold that the suit properties in S.No.162/2 to the extent of 3.14 acres is a joint family property of the Hindu joint family consisting of the plaintiffs and the defendants 1 and 2 and therefore, the plaintiffs are entitled for their share even in this item of the suit properties and would further hold that the plaintiffs are in common enjoyment of the suit properties especially the 6th item falling under S.No.162/2 to the extent of 3.14 acres also along with the defendants 1 and 2 and hence the court fee paid under Sec.37(2) of the said Act is proper and thus has ultimately granted the relief of partition and separate possession as prayed for, passing a preliminary decree to divide the suit properties by metes and bounds into 27 shares allotting 11 of such divided shares in favour of the plaintiffs. Aggrieved, the 3rd defendant has preferred the above appeal suit on certain grounds as brought forth in the memorandum of grounds of appeal.