KARUPPANNA UDAYAR Vs. MUTHUSAMY

JUDGEMENT

(1.) THE unsuccessful plaintiffs in the Court below are the appellants. The plaintiffs are the husband and wife. Plaintiffs filed the suit for partition and separate possession claiming 7/18th share in the suit property, which is the agricultural punja lands to the extent of 3.31 acres situated in Ammani Kothanoor Village, Salem Taluk.

(2.) THE case of the plaintiffs is that the first plaintiff and the first defendant are brothers and they are the members of the joint family. According to the plaintiffs, the father of the first plaintiff and the first defendant, Theerappa Udayar purchased the suit property on 04.12.1945 from one Kulanthapillai, marked as Ex.A -1. He settled one -third undivided share in the suit property in favour of the plaintiffs on 03.04.1961 marked as Ex.A -4, which is a registered settlement deed. Another one -third undivided share was sold by Theerappa Udayar to one Vedaathal on 10.10.1957 marked as Ex. A -2, which according to the parties contain a clause for reconveyance. The said Ex.A -2 was executed by Theerappa Udayar along with the first defendant. The first defendant has repurchased the same from Vedathaal under a sale deed dated 01.10.1964 marked as Ex.A.3, the original of which was marked on the side of the defendant as Ex.B.1. The first defendant who has purchased the share under the said Ex.A.3 is stated to have sold the same to the 6th defendant, under a sale deed dated 31.08.1987 marked as Ex.A.5. In respect of the remaining one -third undivided share, the father of the first plaintiff and first defendant Theerappa Udayar continued to be in possession till his death which was four years before the filing of the suit, the suit having been filed on 15.03.1988. The said Theerappa Udayar -s wife predeceased him and defendants 2 to 5 are the daughters of Theerappa Udayar.

(3.) ACCORDING to the plaintiffs, the said Theerappa Udayar died leaving behind him the first plaintiff, first defendant and defendants 2 to 5 as his legal heirs and they are entitled for equal share in respect of the remaining one -third share of the property which belonged to Theerappa Udayar. In addition to that as per the settlement deed executed by Theerappa Udayar in favour of the plaintiffs on 03.04.1961 under Ex.A -4 they are entitled for another one -third undivided share and therefore, the plaintiffs are entitled totally for 7/18th share in the suit properties. According to the plaintiffs, the first defendant has not only sold an undivided one -third share which was repurchased by him from Vedathaal to the 6th defendant on 31.08.1987 under Ex.A -5 but he has also sold another share to the 6th defendant for himself and on behalf of defendants 2 to 5 on 07.09.1987 under Ex.A.6, the original of which was filed on the defendants - side as Ex.B.3. Since there was no division among the co -owners at any point of time, according to the plaintiffs, the vendors have no right to convey any portion with the specific boundaries. The plaintiffs have filed earlier a suit for declaration in O.S.No.629 of 1987 against defendants 1 to 3 which was subsequently withdrawn on 04.12.1987, with liberty to file a fresh suit. The request of the plaintiffs to divide the properties have not been headed to and therefore, they have filed the present suit for partition. The first defendant remained ex parte.