N DHAYA POOMKAMAZH Vs. PUSHPABAI

JUDGEMENT

(1.) The appellants, who are the first defendant and the legal heirs of the second defendant, have come forward with this Second Appeal challenging the concurrent findings of both the Courts below by granting preliminary decree of partition.

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

(3.) The respondents/plaintiffs are the legal heirs of Jebamony, who is none other than the nephew of the second defendant viz., Nesayyan and they filed a suit in O.S.No.761 of 1991, before the file of Principal District Munsif Court, Padmanabapuram, stating that the second defendant has executed a gift deed dated 30.01.1978 viz., Ex.A.1, by gifting 1/3rd of the total area i.e., 17 2/3 cents of property in the plaint schedule item 1 to 16 cents in item No.2. As per gift deed dated 31.08.1979 viz., Ex.A.2, the second defendant had executed 17 2/3cents of property in the plaint schedule item 1 to 16 cents in item No.2, and hence, the plaintiffs are entitled to 2/3rd share in the gift deeds. In the gift deeds, the second defendant is given a right to take the usufructs till his lifetime. Jebamony has got absolute title and possession over the properties comprised in the gift deeds. He has effected mutation of revenue records and paid kists. Jebamony died intestate on 20.01.1990, leaving behind the plaintiffs. So, the plaintiffs succeeded to his rights over the suit properties. Now, the defendants, taking advantage of any demarcation in the boundaries, attempted to put up new building in the suit properties. The second defendant has executed a settlement deed viz., Ex.A.10 in favour of the first defendant on 04.03.1985, who is the eldest daughter, which forms part of the properties gifted under settlement deeds dated 30.01.1978 and 31.08.1979. Hence, the plaintiffs are constrained to file the suit for partition and separate possession of 2/3rd share in the suit properties.