SANDANAMMAL Vs. P V SUIYARAJAM

JUDGEMENT

(1.) THIS appeal has been preferred by D1 to D3 in O.S.No.8 of 1993 on the file of the Court of Subordinate Judge, Krishnagiri. The plaintiff has filed the suit for partition of his 1/5th share in the plaint schedule properties.

(2.) THE averments in the plaint in brief relevant for the purpose of deciding this appeal are as follows:- THE plaintiff and D4 are the daughters of one P.M.Viswanatha Chettiar. D1 is the wife and D2 & D3 are the sons of said P.V. Viswanatha Chettiar, who died in or about the year 1989 intestate. THE father of Viswanatha Chettiar was Andi Chetti alias Munisami Chettiar. THEre was a partition effected during the life time of said Viswanatha Chettiar between himself and D2 & D3 under a registered partition deed dated 7.7.1971. Viswanatha Chettiar was allotted specific items of properties described in 'A' schedule of the said partition deed dated 7.7.1971. D2 & D3 were also allotted specific items of properties under the said partition deed dated 7.7.1971 with a description as schedule 'B' & 'C' respectively in the said partition deed. After the said partition, the sharers are enjoying the same without any hindrance from any quarters after obtaining separate patta for their respective shares. THE properties of said Viswanatha Chettiar have devolved upon the plaintiff and Defendants on his death. After the death of the said Viswanatha Chettiar the plaintiff and the defendants have been in joint possession and enjoyment of the properties left by Viswanatha Chettiar and they have been sharing the expenses and income from the properties jointly. THE suit properties being the separate properties of the said Viswanatha Chettiar, the plaintiff and defendants are each entitled to 1/5 share in the suit properties. After the death ceremonies of said Viswanatha Chettiar are over D1 to D3 have been promising to effect a division of the suit properties and deliver separate possession of the properties to the plaintiff of her 1/5 share. But D1 to D3 were postponing to effect division of the suit properties under some pretext or other. THE plaintiff issued registered notice dated 2.11.1992 demanding D1 to D3 to effect division of the suit properties into five equal shares and to allot one such share to the plaintiff. D1 to D3 have received the notice but kept quite without sending any reply. Hence, the suit for partition and for mesne profits.

(3.) THE plaintiff in his reply statement would state that there is a house property belonging to the plaintiff's husband P.S.Sivam in Pannandur village and the same is being enjoyed by her husband Sivam by letting out to a tenant. THE plaintiff's husband has also made lot of improvements in the said house spending about Rs.20,000/-. THE said house was not allotted to the plaintiff's father Viswanatha Chettiar. So the suit is not bad for partial partition. THE plaintiff and the defendants are not entitled to any share in the said house. THE said house is absolute property of the plaintiff's husband P.S.Sivam. THE plaintiff is not in permissive possession and enjoyment of the above said house property. Even patta for Item Nos.1 to 5 in 'A' schedule property and in item 1 of schedule II and item 13 of schedule III was in the name Viswanatha Chettiar in the partition, and he was in possession and enjoyment of those properties.