R PONNUSAMY Vs. PARVATHI AMMAL

JUDGEMENT

(1.) THE plaintiff who lost before both the courts below has preferred this second appeal. Pending the Second Appeal the sole plaintiff died and his legal representatives have been brought on record.

(2.) THE appellant/plaintiff filed the suit for partition claiming 1/3rd share in the suit property. According to the plaintiff, the suit property originally belonged to her grandmother Chellammal. After her death her mother Thayarammal had been in possession and enjoyment of the same. She had three daughters, the plaintiff, Muniammal and one Nagammal Muthiyalu Naicker, who is the husband of the first defendant is the son of Thayarammal. Except, the first plaintiff, other legal heirs have died. Thayarammal died in 1972. The defendants 2 to 5 are the legal heirs of Muniammal. Nagammal died without any issues. The plaintiff left the suit property with the defendants and the defendants have been paying melwaram for the same. During 1975 they have failed to pay the melwaram for which a suit has been filed in O. S. No. 72/77 in which a decree has been passed. Against the same an appeal has been preferred by them in which it was held that the defendants are entitled to partition. There are some other properties in possession and enjoyment of Thayarammal. The plaintiffs are entitled to 1/3rd share in the suit property. Since the first plaintiff died the second plaintiff, her son is entitled to her share. Hence the suit.

(3.) THE first defendant resisted the suit by filing a written statement denying the fact that the suit property originally belonged to Chellammal, thereafter Thayarammal who had three daughters and one son. It is admitted that the first defendant is the wife of Muthial Naicker. It is denied that defendants 2 to 5 are the heirs of the deceased Muniammal. Muthial Naicker has other legal heirs besides the first defendant. It is not correct to state that the plaintiffs are entitled to partition based on the judgment in A. S. No. 170 of 1978 filed by the parties. The suit property was never in possession and enjoyment of the plaintiff. The father in law of the first defendant Munusamy Naicker died leaving behind three daughters and one son as his legal heirs. After his death, the suit property devolved on Muthilau Naicker. After Muthial Naicker, the first defendant and her children are entitled to the same. The patta stands in the name of Muthial Naicker. The plaintiff is not entitled to the suit land. Hence the suit is liable to be dismissed with costs.