PANCHALAI AMMAL Vs. VIBHASHANAN

JUDGEMENT

(1.) THE second appeal has been preferred by one Panchalai Ammal being the second plaintiff in O. S. No. 464 of 1984 on the file of the District Munsif Court, Kallakurichi against the judgment and decree of the Principal Sub Court, Cuddalore in A. S. No. 68 of 1992 in and by which the Sub Court, Cuddalore has allowed the said appeal and set aside the judgment and decree of the District Munsif Court, Kallakurichi.

(2.) THE said suit was filed by the said Panchalai Ammal and his mother Muniammal against the defendants viz. , Innasi, one Vibushnan respectively being the first and second defendants for the reliefs of partition and separate possession of 1/6 share along with future mesne profits in respect of the plaint schedule properties with the following allegations. The first plaintiff viz. , Muniammal is the second wife of one Ramapillai and the second plaintiff viz. , Panchalai Ammal is the daughter of the said Ramapillai through the first plaintiff. The plaint schedule items 1 to 4 are the ancestral properties of Ramapillai and his sons and brothers of the second plaintiff viz. , Viapillai and Manipillai. The fifth item of the plait schedule properties is the property purchased from and out of income from the ancestral properties. So, the plaint schedule properties are ancestral and joint family properties of the said Viapillai and Manipillai and the plaintiffs. The said Ramapillai died in the year 1963 and so, the plaintiffs and the said Viapillai and Manipillai are entitled to get 1/3 share each and thereby after the death of Ramapillai, the plaintiffs are entitled to get 1/6 share belonging to the deceased Ramapillai. The plaintiffs, the said Viapillai and Manipillai are enjoying the suit properties. Whileso, the said Viapillai and Manipillai who are brothers of the second plaintiff and sons of the first plaintiff have sold the suit properties in favour of defendants 1 and 2 without the knowledge of the plaintiffs. So, the said sale in favour of defendants 1 and 2 is not binding upon the plaintiffs' right. Defendants 1 and 2, on the strength of their purchase, began to trespass into the suit properties in the year 1982. Therefore, the plaintiffs have filed this suit for partition of 1/6 share along with future mesne profits.

(3.) THE said suit was resisted by the defendants with the written statement of the second defendant with the following allegations. The suit filed by the plaintiffs is not maintainable. The 5th item of the plaint schedule properties is not ancestral and joint family property of Ramapillai and his sons. In fact, the said 5th item was purchased by the sons of Ramapillai viz. , Viapillai and Manipillai separately. After the death of Ramapillai, there was a family arrangement and in that family arrangement, items 1 to 4 of the plaint schedule properties were allotted to Viapillai and Manipillai and that a land called as Erankadu was allotted to the plaintiffs and as per that family arrangement, the parties were enjoying the suit properties separately. Thereafter, Viapillai and Manipillai partitioned the suit properties allotted to them in the family arrangement and are enjoying their respective shares separately and therefore, the plaintiffs have no right of share upon the suit properties. Since, the plaintiffs were never in common enjoyment of the suit properties and Viapillai and Manipillai alone were separately enjoying the suit properties, the suit is barred by limitation. Further, the suit, without impleading the said Viapillai and Manipillai, who are none other than the brothers of the second plaintiff and sons of the first plaintiff, is not maintainable. In fact, the second defendant has purchased half share of Manipillai upon the plaint schedule properties through a registered sale deed on 21. 3. 1984 and from that date, he alone is in possession and enjoyment of the purchased properties. Hence, the plaintiffs have no manner of right for partition of the plaint schedule properties and the suit is liable to be dismissed.