MURUGESAN Vs. ANGAMUTHU GOUNDER

JUDGEMENT

(1.) The plaintiff in O.S.No.505/85 on the file of the learned Subordinate Judge, Sangagiri, is the appellant in the second appeal. He filed the suit for partition and separate possession of his one half share in the suit properties. The defendants were his father Angamuthu and his sons through one Chinnathayee.

(2.) His case as set out in the plaint is as follows: The suit properties fell to the share of the first defendant in a partition dated 17-4-1973. The first defendant married the plaintiff's mother one Thailammal in 1935 as per custom in the community. The plaintiff and one Thankamma were born to them. Out of the income from the joint family properties, the first defendant constructed houses, dug up wells and purchased properties. The plaintiff was entitled to one half share in the suit properties. There were no debts to the family. The first defendant had an elder brother by name Sengoda Gounder. He died leaving behind two wives, Thaiyamuthammal and Chinnathayee. The first defendant was keeping Chinnathayee as his concubine. Defendants 2 and 3 and three female children were born to them. There was misunderstanding between the plaintiff and the first defendant because of defendants 2 and 3. The plaintiff caused a notice to be issued on7-2-1985 for partition. The first defendant sent a reply stating that the plaintiff was only his second wife's son and defendants 2 and 3 were his sons through his first wife Chinnathayee and they were also entitled to a share. The suit was therefore necessitated.

(3.) The first defendant filed a written statement contending inter alia as follows: He married the plaintiff's mother Thailammal in 1937; she was his second wife and Chinnathayee was his first wife and mother of defendants 2 and 3; six months prior to his marrying Thailammal, the first defendant married Chinnathayee, widow of his elder brother Sengoda Gounder, who died in March, 1936; the first defendant belonged to Vanniyakula Kshatriya and he married Chinnathayee as per custom in the Community; it is not correct to say that Chinnathayee was his concubine; there is a custom in the Community for remarriage of widows; defendants 2 and 3 are legitimate children and they are entitled to a share; the first defendant purchased house and other properties on 24-11-1943; they were his separate properties; a division was effected in 1940 originally, though the partition deed was executed only in 1973; In that partition, the first defendant gave away his self-earned properties to his brother's children and took their property in S.No.94, which was subdivided as S.Nos.94/1 and 94/1-A; he dug a well in the property and put up a house in 1961; the thatched house was put up in 1943 and tiled house in 1969 out of his own earnings; there is debt of Rs.10,000/-; It is not correct to say that till date there had been no division; there was an oral division on 4-6-1971; the properties were divided into four equal shares; the movables were also divided and ever since the division the respective sharers were in separate possession; the oral division was effected in the presence of panchayathars; in 1978 misunderstanding arose between the plaintiff and the first defendant; the plaintiff gave a criminal complaint against the first defendant; it is not correct to say that the plaintiff is in enjoyment of the joint family properties; the plaintiff is enjoying the properties allotted to him separately; in case, a fresh division is to be effected, the self-earned properties of the first defendant may be left out and there can be a partition of the other properties and provisions should be made for repayment of the debt in a sum of Rs.10,000/-.