IRUSAYEE Vs. LAKSHMI

JUDGEMENT

(1.) The Appeal Suit on hand is directed against the judgment and decree passed in O.S.No.127 of 2010 dated 11.04.2012. The appellant is the first defendant in the Suit. The Suit was instituted by the first respondent in the Appeal Suit for partition claiming 1/4th share in the property and to pass a preliminary decree to that effect.

(2.) The case of the first respondent plaintiff in the plaint are that the plaintiff and the defendants 2 and 3 are sons and daughters of the first defendant. The 3rd defendant died during the pendency of the Civil Suit and legal representatives were impleaded as parties. The suit schedule properties originally belonged to Mr.Marimuthu Konar, who is the husband of the first defendant and father of the plaintiff and the defendants 2 and 3. The said Marimuthu Konar, with his brother Perumal Konar and there was a partition in the family on 16.05.1964. The said Marimuthu Konar got B schedule property, i.e., the suit schedule property and was in possession and enjoyment of the property. The said Marimuthu Konar died intestate before 30 years back from the filing of the suit and the plaintiff was entitled to 1/4th share of the property. It is stated as, when the plaintiff and defendants are in joint possession and enjoyment of the property, the plaintiff wanted to partition the property and demanded partition directly on 04.05.2010 and the lawyer notice was issued. Since the defendants have not agreed, the plaintiff was constrained to institute a suit for partition.

(3.) The second defendant filed a written statement denying the allegations. The plaintiff and the defendants 2 and 3 are the children of the 1st defendant is admitted. The family partition dated 16.05.1964 was denied. The properties were allotted to the 2nd defendant and appointing one Sivanandi Konar as guardian and the properties belonged to 2nd defendant. After the partition deed dated 16.05.1964, within three months, Marimuthu Konar died and therefore, the fact remains that Marimuthu Konar died before 46 years back.