RAMANATHA MUDHALIYAR Vs. KALYANASUNDRAVADIVOO

JUDGEMENT

(1.) Challenge in this second appeal is to the judgment and decree, dated 18.01.2005 passed in A.S.No.115 of 2004 by the Principal District Judge, Tirunelveli, partly allowing the judgment and decree passed in O.S.No.55 of 2001 on the file of the Principal Sub Judge, Tirunelveli, dated 30.03.2004.

(2.) The respondents herein as plaintiffs have instituted Original Suit No.55 of 2001 on the file of the Principal Sub Judge, Tirunelveli for the relief of partition, wherein the present appellant has been shown as defendant.

(3.) It is averred in the plaint that the 1st plaintiff is the wife and the plaintiffs 2 to 4 are the sons and daughter of one Shanmugasundram. The said Shanmugasundram is the only son of the defendant. The defendant's father name is V.P.S.Shanmugasundaraperumal Mudaliar and he is having three sons, namely Ramanatha Mudaliar (Defendant), Shankaranaraya Mudaliar and Sambasivam Mudaliar. The suit property originally belonged to the father of the defendant, namely V.P.S.Shanmugasundaraperual Mudaliar. After the death of V.P.S.Shanmugasundarperumal Mudaliar, on 08.08.1938 his three sons have entered into a partition agreement. In the said partition, the 2nd schedule property was allotted to the share of the defendant. As per the partition deed, items 4 to 7 were allotted to the share of the two wives of Shanmugasundaraperumal Mudaliar, viz., Madathiammal and Ayudaiammal and that on 04.02.1958 Madathiammal died and Ayudaiammal also died on 12.11.1958. After their death, the defendant and his brothers were in possession and enjoyment of the joint family properties. In the meanwhile, the defendant's brother Shankaranaya Mudaliar died leaving behind his wife Parvathiammal and two daughters. Thereafter, the said Parvathiammal filed a suit in O.S.No.37 of 1959 on the file of the District Munsif Court, Tirunelveli, seeking partition in the joint family properties and in the said suit on 30.03.1960, a preliminary decree was passed. In the preliminary decree, the defendant and his brother Sambasiva Mudaliar and Shankaranarayana Mudaliar's wife Parvathiammal were allotted 1/3rd share each and thereafter final decree was passed. The shares allotted to the defendant as per the partition deed, dated 08.08.1938 and as per the final decree passed in O.S.No.37 of 1959 are shown as suit schedule properties. When the properties were allotted to the share of the defendant, they were shown as ancestral properties and hence, the 1st plaintiff's husband was entitled to half share in the undivided property and the 1st plaintiff's husband and the defendant were in joint possession and enjoyment of the undivided shares. On 28.08.1983, Shanmugasunda Mudaliar died leaving behind him the plaintiffs as his legal- heirs. Thereafter, the plaintiffs and the defendant are in joint possession and enjoyment of the suit properties. The defendant is having three daughters and they got married before 1975 and hence, they have no right in the suit properties. When the 1st plaintiff's husband was alive, he and the defendant, being the brother of the 1st plaintiff's husband were jointly settled some portions of the properties and the remaining portions are mentioned in the suit scheduled properties. Till date, the plaintiffs and the defendant are in joint possession and enjoyment of the suit properties. When that is the position, on 20.02.2001 the defendant has given advertisement in Dinamalar Newspaper for sale of the suit 1st and 2nd items of properties. On 22.02.2001, the 2nd plaintiff has given a reply notice for the same stating that the suit properties are the joint family properties of the plaintiffs as well the defendant and the defendant has no right to sell the joint family properties. Since, the defendant has attempted to sell the joint family properties, the plaintiffs have filed the suit for partition.