T A YUVARAJ Vs. T BALAKRISHNAMA

JUDGEMENT

(1.) The first defendant in the Original Suit is the appellant in A.S. No. 159 of 2002. The defendants 2 to 6 in the Original Suit are the appellants in A.S. No. 161 of 2002. The plaintiffs 1 and 2 in the original suit figure as respondents 1 and 2 in both the appeals. Both the appeals have been filed against the preliminary decree passed for partition in O.S. No. 491 of 1993 on the file of the Principal Subordinate Judge, Erode.

(2.) The respondents 1 and 2 in the appeals, as plaintiffs 1 and 2 filed the suit O.S. No. 491 of 1993 on the file of the Principal Sub Court, Erode for the relief of partition and separate possession of their share in the suit property. According to the plaint averments, the suit property was the self acquired property of their father Arumugham Naicker and since the said Arumugham Naicker died Intestate in 1966 and his wives having predeceased him, the plaintiffs and first defendant as the daughters and son of Arumugham Naicker became entitled to the suit property in equal shares. Thus, the respondents/plaintiffs claimed that they were entitled to 2/3 share whereas the balance 1/3" share In the suit property alone would go to the first defendant (appellant in A.S. No. 159 of 2002). Claiming that the first defendant / appellant was periodically giving some amount towards the share of the plaintiffs in the rental income derived from the suit property and stopped and refused to make such payment from January 1993 and that an attempt for an amicable partition pursuant to the mediation of Panchayatdars arranged by the plaintiffs became unsuccessful, they had to file the suit for partition. The suit was filed on 15.6.1993 initially against the first defendant alone. Subsequent to the filing of the suit, the first defendant sold a portion of the suit property to the defendants 2 to 6 (appellants in A.S. No. 161 of 2002) under a registered a sale deed dated 1.9.1993. Hence, defendants 2 to 6 were subsequently impleaded as party defendants.

(3.) The suit was resisted by the first defendant by filing a written statement containing allegations, in brief, as follows; The suit property was one among a number of properties jointly allotted to Arumugham Naicker, his wife Lakshmayee and his son Yuvaraj, the first defendant under a registered partition deed dated 12.12.1943. Since Lakshmayee, predeceased Arumugham Naicker, Arumugham Naicker and his son Yuvarai viz., the first defendant became entitled to the suit property in equal shares. The said Arumugham Naicker by virtue of a settlement deed dated 25.1.1963 settled his 1/2 share in favour of Yuvaraj, the first defendant/appellant in A.S. No. 159 of 2002. Ever since the execution of the said settlement deed, Yuvaraj, the first defendant/appellant in A.S. No. 159 of 2002, enjoyed the property as his own to the exclusion of every other person including the respondents 1 and 2/plaintiffs. The rental income derived from the suit property was not shared by him with the respondents 1 and 2/plaintiffs as claimed by them in the plaint. In any event, even if it is assumed that the plaintiffs did have a right to have a share in the suit property, such right got extinguished by ouster. The first defendant/appellant in A.S. No. 159 of 2002 was dealing with the property through out as if he alone was the sole and absolute owner of the same for more than the statutory period and hence the claim of the respondents 1 and 2 herein/plaintiffs for partition should be rejected.