VENKATACHALAM Vs. RAJAMMAL

JUDGEMENT

(1.) THIS appeal is focussed as against the judgment and decree dated 19/7/1989 passed in O. S. No. 27 of 1989 on the file of the learned Subordinate Judge, Dharmapuri in decreeing the suit for partition and separate possession of 1/5th share each, in favour of the plaintiffs. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.

(2.) NIGGARD and bereft of details, the case of the plaintiff as stood exposited from the plaint could be portrayed thus: the properties described in the schedule of the plaint belonged to one Thandaiammal as her exclusive properties. The first and second plaintiffs and the third defendant are the daughters and the defendants 1 and 2 are the sons of Thandaiammal. Consequent upon her death, her aforesaid children became entitled to equal shares in the suit properties. However, defendants 1 and 2 by way of defeating the interest of the daughters of Thandaiammal clandestinely and surreptitiously effected a partition between D1 and D2 themselves on 5/6/1965. The plaintiffs were not aware of such partition immediately. However, three years later, they demanded partition for dividing the property into five shares and for allotment of one share to each of the legal heirs of the deceased Thandaiammal; whereupon, by the intervention of the relatives, there emerged a consensus among the sharers that all the legal heirs should continue to enjoy the suit property as before and share the income arising there from. Subsequently, the plaintiffs felt that it was no more feasible to continue the joint status of sharing of the income and hence, after exchange of pre suit notices, the suit came to be filed for partition.

(3.) REMONSTRATING and impugning, the allegations/averments in the plaint, the first defendant filed the written statement, which was adopted by D3, the pith and marrow of it would run thus: the daughters of Thandaiammal,viz. , the plaintiffs 1, 2 and D3 got utmost benefit by way of Seervarisai from Thandaiammal. Consequently, understanding that the sons of Thandaiammal are not financially sound, the daughters of Thandaiammal have relinquished orally their right over the suit property, which belonged to Thandaiammal. Thereafter, in the presence of relatives and elders, D1 and D2 got partitioned the suit properties. D3's husband and P1's husband were also present at the time of effecting such partition between D1 and D2 and they also attested the partition deed dated 05. 06. 1965. The plaintiffs were aware of all these details. Following the said partition, for about 19 years, the respective sharers have been enjoying the suit property and also effected amelioration. While so, D2 developed hostility as against D1 in view of the latter having not granted permission for burying the dead body of his son Panneerselvam in the property of D1; whereupon only D1 engineered this vexatious suit by instigating the plaintiffs to file the suit and the suit is barred by limitation. Accordingly, he prayed for the dismissal of the suit.