C. K. MOHANAN Vs. PRABHAKARAN

JUDGEMENT

(1.) This Second Appeal is directed against the judgment and decree in AS.No. 28 of 2017 of learned subordinate Judge, Gudalur, reversing the judgment of the learned District Munsif, Gudalur in O.S.No.431 of 2011.

(2.) Respondents filed Suit in O.S.No.431 of 2011, seeking a preliminary decree for partition of 1/7th share in the suit properties and for costs. The Respondents/Plaintiffs case is that the 1st Defendant is the Mother and Defendants 2 and 3 are the brothers. The 1st Defendant's husband, Plaintiffs' and 2nd and 3rd Defendants' father is Mr.Kuttappan Aasari died during first week of August 1986, leaving Plaintiffs and Defendants as his legalheirs to succeed to his properties. Mr.Kuttappan Aasari was an absolute owner of an extent of 1.40 acres of land in Survey No.593/2 of Gudalur Village, which is the suit property in this case. After the demise of Father viz., Mr.Kuttappan Aasari, suit property was in the joint possession and enjoyment of Plaintiffs and Defendants. The Plaintiffs demanded partition by metes and bounds and requested the Defendants to effect partition. But the Defendants refused to concede to their request. Therefore, a legal notice dtd. 24/4/2010 was issued to the Defendants, seeking partition and expressing their definite and unequivocal intention of partition of suit property. Even thereafter, the Defendants have not come forward to effect partition and it necessitated the filing of this Suit.

(3.) Third Defendant filed written statement and that was adopted by Defendants 1 and 2. The case of the Defendants/Appellants 1 and 2 is that they admitted the relationship between the parties. It is also admitted that their Father viz., Mr.Kuttappan Aasari was the absolute owner of the suit property and the property devolved on his legalheirs after his demise. It is denied that the suit property was enjoyed in common by the Plaintiffs and the Defendants. It is the specific case of the Defendants that Plaintiffs 2 and 3 are not in possession and enjoyment of the suit property. After the death of Father viz., Mr.Kuttappan Aasari, Plaintiffs and Defendants entered into an oral partition. As per the oral partition, a family settlement was reached. The value of the property was assessed at Rs.1,75,000.00. On 2/5/1996, the 3rd Plaintiff/Mrs.Padmavathi had received a sum of Rs.25,000.00 towards her share in the suit property. She executed a letter of acknowledgment, relinquishing her right in the suit property. The 2nd Plaintiff/Mrs.Sarojini had also received a sum of Rs.34,225.00 and relinquished her share in the suit property. She also executed an acknowledgment deed dtd. 25/2/1997 in this regard. Therefore, Plaintiffs 2 and 3 are precluded and estopped from claiming their shares from the suit property. The claim of the Plaintiffs is that they are in joint possession and enjoyment of the suit property and their demand of partition are false and they are made out for this case. Plaintiffs 2 and 3 are not entitled for any share in the suit property.