SIVASAMY Vs. KALAISELVAN

JUDGEMENT

(1.) The appellants who are plaintiffs in the suit filed this second appeal against the judgment and decree dated 09.09.2003 made in A.S.No.20 of 2003 on the file of District Court, Nagapattinam confirming the judgment and decree dated 30.01.2002 made in O.S.No.11 of 1998 on the file of Additional Subordinate Court, Nagapattinam.

(2.) For the sake of convenience, the plaintiffs in the suit is referred as appellants and the defendants in the suit is referred as respondents here after.

(3.) The appellants/plaintiffs filed a suit in partition of 3/5 share in the suit property. Briefly the case of the appellants is that the 1st appellant is the father of the 2nd and 3rd appellant and also the respondents 1 and 2. The 1st appellant was working as Health Inspector in Tamil Nadu Service and retired in the year 1985. Out of the retirement benefits like Gratuity, Provident Fund and also obtained loan and taken a licence for running diesel bunk at Velankanni, in the name of 1st respondent, who was unemployed graduate belonging to Adi Dravida Community and therefore, obtained licence in his name but doing business by the 1st appellant for the benefit of the family members. On 28.02.1988, the 1st appellant had purchased a vacant site at Velankanni in the name of 1st respondent for construction of house for the family for a sale consideration of Rs.31,000/- out of income from joint family diesel business. In the above said vacant site, the 1st appellant had constructed two houses in the year 1991, by obtaining loan and also out of the income from diesel business. The loan obtained by the 1st respondent was also utilised for construction of some portion in the house. The 1st respondent taking advantage, he had executed a settlement deed, in favour of the 2nd respondent and trying to alienate the property to third parties. Since the suit property is a joint family property, the plaintiffs have filed the suit for partition and separate possession of their 3/5 share in the suit property.