GOTHAINAYAKI Vs. ARUMUGA NAINAR

JUDGEMENT

(1.) This Second Appeal has been filed challenging the concurrent findings of the courts below. The plaintiffs in the suit in O.S.No. 22 of 2012 on the file of the Additional Sub Court, Tirunelveli are the appellants herein.

(2.) The suit was filed for partition claiming 4/5th share in the suit schedule property. The plaintiffs claim that their father Arumuga Nainar, the first defendant in the suit led a wavered life and he never executed a sale deed dtd. 21/2/2007 in favour of the second defendant. According to the plaintiffs, after the death of their father Arumuga Nainar, they are entitled to 4/5th share. The plaintiffs claim that the suit schedule property is an ancestral property of Kadarkariandi Nadar. The plaintiffs being his grand children are therefore entitled to equal shares along with the first defendant who is their father. In such circumstances, they have filed the suit for partition claiming 4/5th share.

(3.) However, as seen from the written statement filed by the second respondent in whose favour the suit schedule property was sold by the first defendant under sale deed dtd. 21/2/2007, the second defendant claims that only through a valid sale deed dtd. 21/2/2007 he had purchased the suit schedule property from the first defendant. It is also contended by the second defendant that after purchase, he filed a petition in R.C.O.P.No.32 of 2010 against the first defendant for eviction and obtained delivery through the court in an Execution Petition. The second defendant also contended that without challenging the sale deed dtd. 21/2/2007 standing in his name, the suit is not maintainable. The second defendant also contended that there is no joint possession and therefore, the payment of court fee by the plaintiffs is not correct. The second defendant also contended that the suit schedule property is an absolute property of the first defendant through a settlement deed and hence, he has got absolute right to sell the property.