PALANIAMMAL Vs. ALAMELU AND ORS.

JUDGEMENT

(1.) THE non -suited second plaintiff before the Courts below in a suit for partition, has projected the instant Second Appeal.

(2.) THE case of the plaintiffs in O.S. No. 1152 of 2004 is that the first defendant owned the suit properties by virtue of partition deed dated 30.8.1965 and he divorced the second defendant, who is his first wife, in the year 1972 subsequent to which he married the first plaintiff as his second wife and out of the wedlock, the second plaintiff was born to her. It is also stated that the first defendant was taking care of the third defendant, who was a minor at the time and a panchayat was held in the family as per which, a nominal partition was executed and the properties were divided and allotted to the defendants 1 and 3. The further case of the plaintiffs is that the partition was not acted upon and all the properties were enjoyed by the first defendant. The grievance of the plaintiffs is that the first defendant, joining with the defendants 2 to 4, created all sorts of disturbances and drove them out. Since their demand for maintenance and partition in the suit properties were refused by the first defendant, claiming that the first plaintiff is entitled for maintenance and the second plaintiff is entitled for partition in the suit properties, they have filed the suit and sought for direction to the first defendant to divide the suit properties into 3 equal shares and allot one such share to the second plaintiff, for a direction to the first defendant to pay maintenance at the rate of Rs. 1000/ - per month to the first plaintiff from the filing of the suit and to create charge over the suit properties for the maintenance amount and also for costs.

(3.) THE third defendant filed a separate written statement adopted by the defendants 2 and 4, and contested inter alia denying the case of the first plaintiff that he is the second wife of his father, viz., the first defendant. Admitting that the suit properties are the ancestral properties of his father and also the partition deed dated 30.8.1965 as per which C schedule property was allotted to the first defendant and his heirs, he stated that himself and his father were in joint possession and enjoyment and subsequently, by way of partition deed dated 13.6.1978, they divided the properties between themselves in which A schedule was allotted to the first defendant while B schedule which consists of nearly 7 items, was allotted to him and they enjoyed the same separately. According to the third defendant, the suit properties are his separate properties in which the plaintiffs have no right and sought for the dismissal of the suit.