VASUDEVA NAICKER DIED Vs. T A MADHAVAN

JUDGEMENT

(1.) DEFENDANTS 1, 3, 5, 7 and 9 in O.S.No.13 of 1979 on the file of Subordinate Judge, Kancheepuram are the appellants in the above appeal. First respondent herein/plaintiff has filed the said suit for partition and separate possession of 9/32 share to him and for accounts of the income from the date of plaint till the date of delivery of possession.

(2.) THE case of the plaintiff as seen from the plaint is briefly stated hereunder: One deceased Rajagopal Naicker and the plaintiff are brothers and constituted a joint family. They are the sons of Hariputhira Gounder, who was a permanent resident of Thandarai village. He died in the year 1964 leaving behind his widow Kalyani Ammal, three sons and five daughters. Plaintiff -s mother Kalyani Ammal died in the year 1965, leaving behind her eldest son Rajagopal Naicker, who died in 1973, his widow Karpagammal, his son Varadarajan and his daughter Logammal namely defendants 2 to 4 as his only legal heirs. The plaintiff and the first defendant are the only surviving sons and the deceased Hariputhira Gounder left behind 5 daughters of whom, one Kanniammal died leaving behind her only daughter as her legal heir, who is the 9th defendant. Defendants 5 to 8 are the other surviving daughters. The properties described in the schedule are the joint family properties of the plaintiff and defendants. It is contended tha t originally the father and 3 sons constituted the joint Hindu family which owned and possessed the suit properties. There was also some ancestral nucleus From out of these income and exertions, some of the properties were purchased even in the father -s life time. The plaintiff, who was employed in Madras, was also sending his earnings to his father and also to the deceased Rajagopal. From these earnings also, some properties were purchased in the name of the father out of respect. The family house was constructed with joint earnings and exertions. All the suit properties are owned, possessed and treated as joint family properties by the father and 3 sons. In the suit property the plaintiff has got l/4th share and the remaining 3/4th share belongs to Hariputhra Gounder, deceased Rajagopal and the first defendant. On the death of his father, his l/4th share is devolved upon his children each getting 1/32 share. Thus the plaintiff is entitled to l/4th share plus 1/32 share, namely 9/32 share. The defendants 2 to 4 are together entitled to the same 9/32 share. Defendants 5 to 9 each are entitled to 1/32 share. The first defendant has been adopting a hostile attitude and refused to give the income to the plaintiff and other sharers. Thereupon, the plaintiff issued a notice to the first defendant on 23.10.78 demanding partition and separate possession of the suit property. Though the first defendant received the notice, he gave a reply with false allegations. Hence the plaintiff is obliged to file the suit for partition and separate possession of this 9/32 share and also for an account of income from the date of plaint till delivery of possession and for costs.

(3.) SECOND defendant filed a separate written statement and the same was adopted by defendants 4 and 8 wherein they have admitted the averments made in the plaint. They also stated that the share mentioned therein is correct. He has no objection for partition and separate possession. He has also paid necessary court fees for partition and separate possession of his share as detailed in the memo of calculation. Similarly D -4 and D -8 have also paid separate court fees for partition and separate possession of their shares.