RAJAMANI Vs. RENU

JUDGEMENT

(1.) THE Plaintiffs in O.S. No. 336 of 2000 on the file of the learned Subordinate Judge, Vellore are the appellants in this appeal. The suit was filed by them for a preliminary decree of partition and for separate possession of 33/45 share in the plaint described property. The trial court passed a preliminary decree of partition, which was reversed by the first appellate Court on appeal by the defendants. Aggrieved by the decree and judgment of the first appellate Court, the present second appeal has been filed.

(2.) ACCORDING to the plaintiffs, the defendants 1 to 3 are sons and daughters of late. Munusamy and Ammaniammal. The said Munusamy married the 4th plaintiff as his second wife, through whom, the plaintiffs 1 to 3, 5 and 6 have born. The deceased Munusamy owned properties of his own which were in joint possession and enjoyment by the family of Munusamy. The said Munisamy died on 02.06.1981 leaving behind the plaintiffs and defendants as his legal heirs. Even after the death of Munusamy, the plaintiffs and defendants were in joint possession and enjoyment of the properties without dividing it by metes and bounds. During the year 1998, the plaintiffs asserted a right over the properties and sought for partition, but it did not fructify due to the inimical attitude of the first defendant. Thereafter, due to difference of opinion, the plaintiffs left the joint family property and residing separately. As the first defendant and other defendants refused to give share in the joint family property left by late. Munusamy, the plaintiffs filed the suit for partition.

(3.) BEFORE the trial court, the first plaintiff examined himself as PW1 and Exs. P1 to P10 were marked. On the side of the defendants, the first defendant Thiru. Renu examined himself as DW1 along with other witness Narayanan as DW2 and Exs. B1 to B3 have been marked. The trial court, on appreciation of the oral and documentary evidence pointed out that even though the defendants have alleged that a Kurchit dated 25.03.1973 was executed by which the suit properties have been partitioned and allotted to the respective plaintiffs and defendants, the defendants did not produce the kurchit as a document before the trial court. The trial court also pointed out that had there been a partition by executing a Kurchit, as alleged, the defendants could have produced tax receipts from 1973, however, such receipts have been produced only from the year 1988 under Ex.B3 series. Therefore, the trial court took an adverse inference against the defendants and held that the suit properties are not subjected to partition and the relief of preliminary decree for partition sought for by the plaintiffs is well founded. Accordingly, the trial court passed a preliminary decree of partition on 16.11.2006.