MARIAPPAN Vs. KALIAMMAL

JUDGEMENT

(1.) THE contesting defendants 2 to 5 are the appellants herein. The suit is filed by the respondent/plaintiff Kaliammal for partition of her 1/5th share in the suit schedules 1 to 3. The first defendant, by name, Karuppayee, the plaintiff Kaliayammal, 4th defendant Neeraru Ammal and the defendants 2 to 4 viz., Mariappan and Pothi are the wife, daughter and sons of one late Kalimuthu Thevar. The suit items 1 to 3 having been purchased under Ex.A1 (Ex.B.1), dated 07.09.1961, Ex.A2, dated 08.04.1961 and Ex.B3, dated 24.03.1969, in the name of Kalimuthu Thevar, the plaintiff claims the suit reliefs in the suit items in her capacity as one of the legal heirs of Kalimuthu Thevar on the ground that the suit items 1 to 3 are the self acquired property of Kalimuthu Thevar.

(2.) THE suit is resisted by the contesting defendants by denying the self acquired nature of suit items. According to the contesting defendants, the suit items are purchased through the income from the joint family property, but purchased in the name of the father who was the eldest member of the family and hence, to be treated as joint family property consisting of father and sons. It is their further case that the suit properties even during the life time of Kalimuthu Thevar, are under the family arrangement, divided and allotted to the defendants 2 and 3. While the plaintiff was given one house and 32cents of nanja land, the defendants are given suit items towards their share and since then the parties have been in possession and enjoyment of the respective properties allotted to them by effecting mutation and by residing therein as absolute owner thereof and the defendants thereafter sold the property to 5th defendant in such capacity. The contesting defendants also deny the plaintiff's right to claim to any share on the ground of ouster and adverse possession by claiming prescriptive title on the strength of their open, continuous and long uninterrupted possession adverse to the knowledge of all including that of the plaintiff.

(3.) THE trial court, on the basis of the findings so rendered, granted preliminary decree for partition and separate possession of the plaintiff's 1/5th share and granted declaratory decree that the sale deed dated 06.07.1994 executed by the defendants 1 to 3 in favour of the 5th defendant in respect of items 1 to 3 as null and void. Aggrieved against the same, the defendants 1 to 5 preferred AS.No.82 of 2005. The lower appellate court also on the basis of the available evidence agreed with the finding of the trial court and dismissed the appeal. Hence, this second appeal by the contesting defendants 2 to 5 before this Court.