VAIRAVAN; KATHIRVEL MURUGAN Vs. VASANTHA

JUDGEMENT

(1.) The appellants/defendants, who lost the legal battle in both the Courts below, have come forward with the Second Appeal, challenging the Decree and Judgment passed in A.S.No.24 of 2009, dated 30.11.2010 by the District Court, Kanyakumari at Nagercoil, by confirming the Decree and Judgment made in O.S.No.163 of 2006, dated 15.10.2008 by the II Additional Subordinate Court, Nagercoil.

(2.) Heard the learned counsel for the appellants, the learned Counsel for the respondent and perused the materials available on record.

(3.) The plaintiff/respondent, who is the elder sister of the defendants, filed a suit in O.S.No.163 of 2006 for partition and separate possession of second item of suit schedule property. The first item of suit schedule property is belonged to their father Sudalayandi and the second item of the suit schedule property is belonged to their mother Palavesathammal. Their father died intestate in July 1992, leaving the plaintiff and the defendants as legal heirs. Their mother died intestate in March 1993, leaving the plaintiff and the defendants as legal heirs. Thus they left the suit properties along with other properties. The first item of the suit schedule property is the ancestral property of their father. Since he died intestate, the plaintiff and the defendants are entitled to each 1/3rd share. In respect of the second item of suit schedule property, their father executed a gift deed in favour of their mother and it was treated as a separate property. After their mother died intestate, the plaintiff is entitled to 1/3rd share in the said property also. She further submitted that there was a partition between the defendants and the plaintiff under Ex.A.3 dated 23.04.1996 and in that, the suit properties are not the subject matter. The defendants also executed a release deed Ex.A.4, dated 10.09.1997 and in that also, the suit properties are not the subject matter. Since two items of suit schedule property are not partitioned, the plaintiff is constrained to file a suit for partition and separate possession of 1/3rd of her share and also without the knowledge of the plaintiff, the defendants entered into a partition deed viz., Ex.A.2 dated 26.05.2004. Since the plaintiff is not a party to the partition deed, she filed a suit for a declaration that the partition deed dated 26.05.2004 as null and void and not binding upon the plaintiff's 1/3rd share in the suit scheduled property and seeking 1/3rd share in the item Nos.1 and 2 of suit schedule properties and prayed for a decree.