PATTUMANI Vs. UTHRAMBAL

JUDGEMENT

(1.) Aggrieved over the judgment of the learned Subordinate Judge, Chidambaram, granting a preliminary decree in a suit for partition by reversing the judgment of the trial Court, the defendants 2 to 5 and 7 to 10 have brought forth this second appeal.

(2.) The short facts necessary for the disposal of this appeal are as follows: One Pethu Asari had three sons namely Muthukumara Asari, Dhandayutha Asari and Palanidurai Asari. The first plaintiff is the wife of Dhandayutha Asari. Pethu Asari died in the year 1945 leaving behind him his three sons as his heirs, and he left the house property at Door No.16-A, Mariyamman Koil Street, Chidambaram. Muthukumara Asari died in the year 1980 leaving behind his wife, the first defendant and his sons defendants 2 to 6 as his heirs. Dhandayutha Asari died in the year 1956 leaving behind him his wife, the first plaintiff and his daughters plaintiffs 2 and 3 as his heirs. Palanidurai Asari died in the year 1965 leaving behind his wife the 7th defendant as his heir. After the death of their father Pethu Asari, the three sons are entitled to 1/3rd share each in the said house property. As such, the plaintiffs are entitled to 1/3rd share each in the suit property. Now the defendants are trying to dispossess the plaintiffs. During the pendency of the suit, the first plaintiff died, and the plaintiffs 2 and 3 are recognised as the heirs of the first plaintiff. The first defendant also died, and her legal representatives are the defendants 2 to 10. The said three sons sold their rights to their father Pethu Asari; that Pethu Asari became the absolute owner of the suit property. The first plaintiff's husband Dhandayutha Asari purchased from his father Pethu Asari on 26.3.1945, the southern portion of the property. The northern portion was with his father, and he died in the year 1945. Dhandayutha Asari died in the year 1956 leaving behind the plaintiffs as heirs, and thus, the plaintiffs have become entitled to 1/3rd share. Hence, this suit.

(3.) The suit was resisted by the defendants stating that neither the plaintiffs nor the deceased Dhandayutha Asari had any rights over the property; that the property exclusively belonged to Muthukumara Asari and Palanidurai Asari; that they were in possession and enjoyment of the same by paying tax; that they prescribed title also; that the deceased Dhandayutha Asari did not have any right over the property on the date of his death, and consequently, the plaintiffs will not also get any right; that the defendants and their predecessors alone dealt with the property; that the suit property is a dwelling house, wholly occupied by the defendants; that the suit is also hit by Sec.23 of the Hindu Succession Act, and hence, the suit was to be dismissed.