JAYAKUMAR AND ANOTHER Vs. NITHYANANDAM AND ANOTHER

JUDGEMENT

(1.) The plaintiffs in O.S. No. 62/1989 before the Sub Court, Cuddalore, are the appellants herein. The suit was filed for partition of plaintiffs /appellants" 2/5th share in the suit properties and the suit was partially decreed and a preliminary decree was passed in respect of item No.3 and the claim for partition in respect of item Nos.1 and 2 was negatived. Aggrieved by the dismissal of the suit in respect of item Nos.1 and 2, the present appeal was filed by the plaintiffs.

(2.) The case of the plaintiffs as seen from the plaint, was, as follows: The first defendant is the father and plaintiffs and defendants 2 and 3 are his sons. Items 1 to 3 are the joint family properties of the plaintiffs/defendants 1 to 3. The first defendant had two daughters, namely Jothilakshmi and Jayalalitha and the fir st plaintiff gave six sovereigns of gold jewels belonging to his wife at the time of marriage of his sister Jothilakshmi to his father and when the same was demanded, dispute arose between him and the father and the second defendant married from another caste and therefore in the year 1987, the plaintiffs left the family and started living separately. The first defendant sold item 1 and 2 to defendants 4 and 5 under two documents dated 24.04.1988 and 27.04.1988 and the first defendant had no right to sell the plaintiffs" 2/5th share in the items 1 and 2 and the third item was purchased out of the sale proceeds of items 1 and 2 and the first defendant had no independent income and therefore all the properties are joint family properties of plaintiffs and defendants 1 to 3 and therefore, the plaintiffs are entitled to 2/5th share in the suit property.

(3.) The 4th defendant filed a Written Statement and the same was adopted by the defendants 1 to 3 and 5. In the written statement filed by the 4th defendant, it was stated that items 1 and 2 were the separate properties of the first defendant and originally those properties were purchased by Arunachala Mudaliar, the grandfather of the plaintiffs and father of the first defendant and he purchased the same under a registered Sale Deed dated 07.06.1952 and Arunachala Mudaliar purchased a site and he constructed a thatched house and on 05.01.1954, the said Arunachala Mudaliar executed a Will bequeathing items 1 and 2 in favour of the first defendant and thereafter he died in the year 1955 and therefore the first defendant got items 1 and 2 under the Will of Arunachala Mudaliar and therefore they were his separate properties and these properties cannot be characterized as ancestral properties in the hands of the first defendant.