NAGARATHINAM Vs. K.R.SRINIVASAN (DIED)

JUDGEMENT

(1.) This appeal by the defendants in a suit for partition being aggrieved by the decree of the Trial Court declaring the plaintiff is entitled to 5/8 share in respect of suit item Nos.l and 3 and portion of the 2nd item which stands in the name of K.R. Ramasamy Naicker.

(2.) The plaint averments are as below:- The plaintiff is son of K.R. Ramasamy Naicker, who died on 13/1/1989 leaving behind his wife K.R. Nagarathinam (1st defendant) and daughters K.R.Santha (2nd defendant) and K.R.Saratha (3rd defendant) and his son Srinivasan the plaintiff herein. The schedule mentioned properties in item Nos.l & 3 are the ancestral property of K.R.Ramasamy Naiker and item No.2 was purchased from out of the surplus income derived from the ancestral property. The properties were held as joint family property with K.R.Ramasamy Naicker as the "Karta". After the demise of K.R.Ramasamy Naicker for the sake of convenience, item No.l of the suit property is in possession, enjoyment and occupation of his son (the plaintiff) and item No.2 of the suit property is in possession, occupation and enjoyment of his wife/1st defendant. Due to difference of opinion with the plaintiff, the 1st defendant filed suit for partition in respect of present suit property and obtained interim injunction in O.S.No.594 of 1994 on the file of Principal Sub Court, Coimbatore and thereafter, dislodged the plaintiff from the possession of the 1st item of the suit property. The present suit is filed seeking 5/8 share in the property by the plaintiff being the sole male descendant of K.R.Ramasamy Naicker and the share devolves upon him as per survivorship.

(3.) The suit has been contested by the defendants 1 and 2 by filing written statement wherein they have contended that the suit properties are not ancestral property of K.R.Ramasamy Naicker as alleged by the plaintiff. Item Nos.l and 3 of the suit properties are the separate property of K.R.Ramasamy Naicker, which he got through a registered partition deed dtd. 21/4/1982. These two properties were allotted to K.R.Ramasamy Naicker under the said partition deed more fully described under 'B' schedule. The property allotted to him were enjoyed exclusively by K.R.Ramasamy Naicker. The description of Survey number in the plaint in respect of 3rd item property is wrong. The actual property allotted to K.R.Ramasamy Naicker under partition deed and in exclusively enjoyment of K.R.Ramasamy Naicker was in Survey No.492/2, Kuniamathur Village, Coimbatore and not in Survey No.432 as mentioned in the plaint.