A. SURESH Vs. MINOR PAVISHNA

JUDGEMENT

(1.) This appeal is filed against the judgment and decree of the II Additional District Judge, Erode in O.S.No.287 of 2010 dated 07.03.2013. The first respondent filed the suit in O.S.No.287 of 2010 against the appellant and respondents 2 and 3 claiming partition of 2/6 share in the suit properties.

(2.) It is the case of the first respondent that the appellant is her father, respondents 2 and 3 are mother and sister of the appellant. Originally, the suit properties belonged to Arumuga Gounder. Second respondent is wife of Arumuga Gounder. Appellant and third respondent are their children. Arumuga Gounder died intestate about 30 years above leaving the appellant and respondents 2 and 3 as his legal heirs. Appellant married first respondent's mother Revathi on 29.10.2001. Due to the ill advice of second and third respondents, appellant filed a divorce petition in HMOP No.166 of 2007 against first respondent's mother on the file of Principal Subordinate Judge, Erode. With the sole intention of denying the legal share of the first respondent in the suit properties, appellant and respondents 2 and 3 executed a partition deed dated 19.12.2007. In the said partition, respondents 2 and 3 have been allotted lion's share and the appellant was allotted only a meagre share. The first respondent is entitled to 2/6 share in the suit properties. Execution of partition deed dated 19.12.2007 clearly shows that the appellant, respondents 2 and 3 wanted to defeat the legal right of the first respondent in claiming 2/6 share in the suit properties. Therefore, this case came to be filed.

(3.) The appellant filed a written statement admitting that the suit properties originally belonged to Arumuga Gounder and stating that after his death, the suit properties have been enjoyed by appellant and respondents 2 and 3 alone. He claimed that the suit properties were partitioned between the appellant and respondents 2 and 3 on 19.12.2007. They succeeded to the suit properties as absolute owners and have been enjoying their respective shares. First respondent has no right to claim partition in the suit property. The suit filed without the prayer for declaration and other reliefs is not maintainable and Court Fee paid is also not correct for the reason that first respondent is not in possession of the suit property. Third respondent had also filed written statement on the same line.