SHANMUGHA MUDALIAR Vs. KRISHNASAMY MUDLIAR

JUDGEMENT

(1.) SHANMUGHA Mudaliar, who is the defendant in the suit, filed this Second appeal against the Judgment and decree dated 30.04.1996 made in A.S.No.36 of 1994 on the file of the Subordinate Judge, Ranipet, North Arcot, confirming the judgment and decree dated 15.12.1993 in O.S.No.316 of 1990 on the file of the District Munsif Court, Ranipet, North Arcot. During the pendency of this second appeal, Shanmugha Mudaliar died and hence, his legal heirs were brought on record as Appellants 2 to 6. Krishnasamy Mudaliar and Arumuga Mudaliar are the plaintiffs in the suit. During the pendency of this second appeal, Krishnasamy Mudaliar died and his legal heirs were brought on records as respondents 3 to 8.

(2.) THE case of the plaintiffs before the Trial Court is as follows:

(3.) THE suit was resisted by the defendant contending that the suit schedule property was already divided nearly 20 years ago and the plaintiffs got Southern side portion of the property and the defendant got Northern side portion of the property. It is further contended that the defendant has been paying tax to the northern side of the property for more than 20 years in his individual capacity and the plaintiffs have also been paying tax for their respective portions of the property. The defendant built shops in the poromboke land of 90 feet length, 10 feet breadth, which is not the ancestral property and hence, the plaintiffs are not entitled for any relief over the same. After the death of plaintiffs' father, the mortgage was created for the benefit of the plaintiffs. It is further contended that the defendant is not the joint family Manager and denied the Joint Family Theory mentioned in the plaint and the plaintiffs are not enjoining the suit property jointly. It is also contended that the suit property is not properly valued and the market value of the property given is also incorrect. Since the partition has already been taken place, the question of re -opening the partition does not arise and the plaintiffs are estopped by their own conduct claiming for second partition. Hence, the defendant prayed for dismissal of the suit. The Trial Judge framed the following issues: -