ANJAMMAL Vs. AMSAVALLI

JUDGEMENT

(1.) AGGRIEVED against the concurrent judgments of the District Judge, Nagapattinam in A. S. No. 79 of 1992 and the Sub Judge, Mayiladuthurai in O. S. No. 112 of 1988 in and by which the relief of partition of half share of the plaintiffs has been negatived by dismissing the suit, the plaintiffs have filed this second appeal.

(2.) THE said suit was filed by the plaintiff with the allegations that one Ganapathy Chettiar is the husband of the first plaintiff and father of plaintiffs 2 to 5 and that one Muthukumaran Chettiar, father of defendants 1 and 2 is the brother of the said Ganapathy Chettiar and that as per the partition deed dated 6. 5. 1929, both Ganapathy Chettiar and Muthukumaran Chettiar got the suit properties to their share and that thereafter both were enjoying the suit properties in common and that thereafter inspite of demand for partition of half share of the plaintiffs, the defendants are not prepared to effect partition and thereby the plaintiffs happened to file the suit for partition.

(3.) THE said suit was resisted by the defendants with allegations that it is true that as per the partition deed of the year 1929, the suit properties came to the share of Ganapathy Chettiar and Muthukumaran Chettiar and that it is not correct to say that it was enjoyed in common and that in fact both Muthukumaran Chettiar and Ganapathy Chettiar mortgaged the suit properties in favour of one Ramasamy Nainar for Rs. 1225/= as per the registered mortgage deed dated 12. 6. 1961 and that Ganapathy Chettiar received Rs. 800/= from the consideration of the mortgage amount and he was not able to pay back the said amount and that in consequence, the said Ganapathy Chettiar executed a registered release deed dated 24. 9. 1962 in favour of Muthukumaran Chettiar and that thereafter the said Ganapathy Chettiar or his heirs viz. , the plaintiff cannot have any right upon the suit properties and that further the said Muthukumaran has executed a settlement deed in favour of his sons viz. , the defendants herein on 27. 3. 1988 and that the settlement deed has been executed by the defendants and they have also alienated a portion of the suit properties in favour of one Rahman Beevi and that considering the close relationship, the plaintiffs were permitted to occupy a portion of the suit property on rental agreement of Rs. 25/= per month and that therefore, taking advantage of the possession of the plaintiffs as tenants, they have chosen to file the suit for partition as if they are in joint possession of the suit properties with the defendants and thereby the suit is liable to be dismissed.