S KAMALAM Vs. SELVARAJ

JUDGEMENT

(1.) THIS appeal has been preferred by the appellant against the judgment and decree passed by the lower court in O.S.No.126 of 1996 dated 12.08.1998 in dismissing the suit filed by the plaintiffs seeking partition of the suit properties.

(2.) THE plaintiffs are the appellants herein. THE brief facts of the plaintiffs before the lower court would be as follows:- 1st plaintiff is the 2nd widow, the other plaintiffs and the 1st defendant are the sons and daughters and the 2nd defendant is the 1st widow of one Santhanam @ Anthonimuthu. He was the owner of the house property mentioned herein. THE said Santhanam purchased the said property during 1929. During his life time he was living with the 1st plaintiff in her house. THE first wife/ 2nd defendant was living with her brother. After the death of Santhanam, the plaintiffs and 1st and 2nd defendant have jointly inherited the property. All the children of Santhanam were born through the 1st plaintiff, his second wife. It is their case that the 1st defendant has got a document of sale concocted and registered on 22.09.1995 purpoting to convey the entire property in favour of his wife, the 3rd defendant. THE said Jayaseeli, the 2nd defendant has been made to describe herself as the 1st wife of Santhanam and she alone had the right to dispose of the property. (b) THE plaintiffs are entitled to ignore the sale deed. If at all the said document had conveyed any title in favour of the 3rd defendant it is only Jayaseeli's 1/10th share. THE 1st plaintiff is the second wife of deceased Santhanam. THE other plaintiffs and the 1st defendant are the legitimate children of deceased Santhanam. (c) On 08.06.1996, the 1st plaintiff caused a notice to be sent to the 1st defendant demanding a partition. THE 1st defendant had stated that Jayaseeli is the only owner of the property on the death of Santhanam and she has sold the property to the 3rd defendant. A rejoinder was sent by the 1st plaintiff on 26.07.1996. THE plaintiffs assail the sale made by Jayaseeli to Vimala as the consideration of Rs.30,000/- stated in the sale document is low and at any event the alleged consideration did not pass. In case it is finally decided that the sale by Jayaseeli of her 1/ 10th share in favour of 3rd defendant is binding, the 3rd defendant would also become a co-sharer in the place of the 2nd defendant. Hence Vimala is shown as the 3rd defendant. THE parties belong to washermen community. It is their custom and practice to contract a 2nd marriage during the life time of the 1st wife. If the 1st wife does not bear a child, the men are allowed to contract a 2nd marriage. This custom and practice has the force of law in Karaikal region. This custom is in vogue from time immemorial. THE plaintiffs are entitled to 8/10 share in the suit property. THEy have not been ousted from possession and by a legal fiction they are deemed to be in joint possession. (d) THE plaintiffs therefore pray for the partition and separate possession of their 8/10 shares in the suit property, providing liberty to the plaintiffs to apply for appointment of a Commissioner to divide the property by metes and bound and make a final decree for partition together with costs. Hence the suit.

(3.) AGGRIEVED plaintiffs have preferred the present appeal against the said judgment and decree passed by the lower court.