V MARIAPPAN Vs. V UTHIRAPATHY

JUDGEMENT

(1.) For the sake of convenience, the parties are referred to in accordance with their ranks in the original suit and in appropriate places, their ranks in the second appeal shall also be referred to.

(2.) The second appeal has arisen from the judgment of the lower appellate court dated 17.11.1999 made in A.S.No.39 of 1998 confirming the preliminary decree dated 31.07.1996 for partition granted by the trial court in O.S.No.166 of 1993 on the file of the Court of the Additional Subordinate Judge, Mayiladuthurai. The above said suit was filed by Uthirapathy, the deceased plaintiff (first respondent herein) for partition claiming 1/7th share in the suit properties. According to his contention, the suit properties were the self-acquisitions made by his father Vaithialingam Padayachi; that on his death, his property devolved upon his widow and children; that on the death of the widow of Uthirapathy, her share also equally devolved upon their children and that thus he became entitled to 1/7th share in the properties left by Vaithialingamm, namely the suit properties. The relationship between the parties is not disputed. The first plaintiff Uthirapathy and defendants 1 to 3, namely Nagarajan, Mariappan and Jayaraman are the sons of Vaithialingam, whereas the defendants 4 to 6 are the daughters of Vaithialingam. Based on his contention that the suit properties were the self-acquisitions of Vaithialingam, the plantiff Uthirapathy claimed 1/7th share and sought the relief of partition and separate possession.

(3.) The suit was resisted by Nagarajan and Mariappan, the first and second defendants alone. The fourth defendant conceded the prayer made by the plaintiff, whereas the other defendants remained ex-parte. It was the contention made by the defendants 1 and 2 that they were also earning while they were along with their father in Singapore and that the earnings made by all of them were used for the acquisition of the properties in question. Thus they claim that the suit properties were the properties of the Hindu Undivided Family consisting Vaithialingam and his four sons; that Vaithialingam had got only 1/5th share and that the 1/5th share, on his death alone devolved on the legal heirs of Vaithialingam. Besides the above said plea, the defendants 1 and 2 also contended that the defendants 4 to 6, namely the daughters of Vaithialingam were totally excluded from having a share in the property either as member of the joint family or as legal heirs of Vaithialingam.