HAMSA Vs. CHINNAKUTTY DECEASED

JUDGEMENT

(1.) THE plaintiff has filed the suit on the original side of this court for the relief of partition, separate possession and other reliefs as this court may deem fit.

(2.) THE averments in the plaint, in brief, are as follows:- i) THE plaintiff, the first defendant Chinnakutty (deceased) and the second defendant Neelakandan are the daughter and sons of late Subramania Naicker. THE third, fourth and fifth defendants, namely Kalavathy, Dhanasekar and Vanaja, are respectively the wife, son and daughter of the said Neelakandan. THE sixth defendant is the wife of late Munusamy and the defendants 7 to 9 are the sons of late Munusamy. Defendants 10 to 32 are the purchasers of the suit properties described in plaint 'E' schedule and they have been added as parties for proper, effective and comprehensive adjudication. Defendants 33 to 37 are the legal representatives of the deceased first defendant Chinnakutty. THE properties described as item Nos.1 to 13 in the plaint 'A' schedule and other properties originally belonged to and were possessed by the plaintiff's grandfather Anaikutty Naicker. THE said Anaikutty Naicker died intestate leaving his properties to be inherited by 1) Duraisamy Naicker (son), 2) Govindasamy Naicker (son), 3) Neelammal, 4) Selvaraj, 5) Balaraman (3 to 5 being the heirs of Natesa Naicker, a predeceased son of Anaikutty Naicker) and 6) Munusamy (son), 7) Chinnakutty (first defendant), 8) Neelakandan (second defendant) and 9) Hamsa, the plaintiff (Nos.7 to 9 being the legal heirs of another predeceased son of Anaikutty Naicker by name Subramania Naicker) as his class 1 heirs. In a partition, the properties described in plaint 'A' schedule fell to the share of the heirs of Subramania Naicker and the same were described in schedule 'D' to the partition deed. THE said partition took place in the year 1964 and at that point of time the plaintiff and the second defendant were minors and they were represented by their brother Munusamy as their guardian. ii) After the partition, the properties described in plaint 'A' schedule have been in the joint possession and enjoyment of all the legal heirs of late Subramania Naicker. During his life time, Subramania Naicker, the father of the plaintiff, out of his self-earnings, purchased the properties described as items 1 to 3 in plaint 'B' schedule under registered sale deeds dated 15.01.1951, 29.07.1953 and 29.08.1953 respectively. Item No.4 of schedule 'B' was also owned and possessed by the plaintiff's father Subramania Naicker, which later on came to the legal heirs of Subramania Naicker (father of the plaintiff) under a decree of court made in O.S.No.394/1955 on the file of the District Munsif Court, Poonamallee and possession of which was obtained in E.P.No.136/1957. As such the properties described in plaint 'A' and 'B' schedules are the common properties of plaintiff and her three brothers and hence she is entitled to " share in the said properties. Despite the demands made by the plaintiff to her brothers, they did not come forward to effect an amicable partition. Meanwhile, the plaintiff along with her brothers jointly alienated properties described as item Nos.2, 3, 5 and 10 of plaint schedule 'A'. THE plaintiff also sold her undivided

(3.) IN the light of the above said pleadings, the following issues have been framed. 1) Whether the plaintiff is entitled to a preliminary decree for partition of " share in the plaint 'F' schedule property" 2) Whether the family arrangement dated 19.04.1977 entered among the sons of Subramania Naicker excluding the plaintiff is valid in law" 3) Whether the plaintiff has lost her right over the plaint 'F' Schedule property by way of long continuous possession over the statutory period by the defendant" 4) Whether the settlement of 23 cents by the 2nd defendant in favour of his wife Kalavathy, the 3rd defendant is sham, nominal and void in law" 5) Whether the suit is barred by limitation" 6) Whether the plaintiff was given 4.04 acres of land in Surapedu village as per the family arrangement towards her share in the family properties" 7) To what relief the plaintiff is entitled"