K MUNUSWAMI GOUNDER Vs. M GOVINDARAJU

JUDGEMENT

(1.) DEFENDANTS 1 and 6 are the appellants in this appeal. The 1st respondent/plaintiff filed O.S. No. 170 of 1980 on the file of the Subordinate Judge, Thiruppathur, for directing division of the suit properties, put him in separate possession of his 1/7th share and for other allied reliefs. The 1st appellant is the 1st defendant in the suit. The 2nd appellant is one of the sons of the 1st defendant through one Peruma Ammal. The 1st respondent/plaintiff is the son of one Pappammal. The 2nd respondent/2nd defendant is the son of the 1st defendant through his first wife Mari. Respondents 3 to 5/DEFENDANTS 3 to 5 are the sons of the 1st defendant through his third wife Peruma Ammal.

(2.) THE case of the plaintiff in short is as follows:? THE 1st defendant is his father. On the death of Mari, his first wife, in or about 1941, the 1st defendant married one Pappammal, who is the mother of the plaintiff, in or about 1942 according to Hindu Law, custom and rites at Perumapattu village. THE plaintiff is the son of the 1st defendant and the said Pappammal. During the pendency of the said marriage, the 1st defendant married another lady by name Peruma Ammal, whose children are defendants 3 to 6. Thus, the plaintiff and all the defendants are part and parcel of a Hindu undivided family and the properties described in the plaint schedule are the ancestral and joint family properties of the plaintiff and the defendants. Since the 1st defendant, who is the Kartha of the Hindu undivided family, refused to effect a partition and give the plaintiff his due share in spite of his notice dated 1-4-1980, the plaintiff has filed the suit for partition and separate possession, and for mesne profits. THE plaintiff is entitled to 1/7th share in the joint family properties and the defendants are each entitled to 1/7th share.

(3.) DEFENDANTS 2 to 5 filed a separate written statement contending that they became divided even in the year 1956 and have been in separate possession and enjoyment of their shares. They have also acquired properties by borrowing and from out of the income from the properties which they got in the partition between themselves and the 1st defendant in the year 1956. The plaintiff, therefore, is not entitled to any share in the plaint schedule properties.