CHINNAMMAL Vs. CHOKKANNA GOUNDER

JUDGEMENT

(1.) FIRST appeal filed against the decree and judgment dated 30.9.1994 made in O.S.NO.22 OF 1986 on the file of II Additional Subordinate Judge, Coimbatore.I. The basis of plaintiffs' claim that failed:The plaintiff's suit for partition of 1/4th share in A and B schedule properties was made on the basis that the suit property belongs to one Apachi Gounder and he died on 21.4.1959 leaving the plaintiff as a daughter and the first defendant as son as his only legal heirs. It was the further contention of the plaintiff that her father had ancestral properties and the acquisitions were therefore of joint family character. The plaintiff conceded that at a notional partition, her father was entitled to 1/2 share and the first defendant was entitled to 1/2 share and on the death of father, the plaintiff was entitled to 1/4th share and the first defendant was entitled to the additional 1/4th share and in all, 3/4th share. The defendants 2 to 5 had been added as purchasers of portions of the properties which were set out in B schedule. The plaintiff had not been a party to the sale transactions and she was entitled to ignore the same and seek for partition.II The contentions in defence:

(2.) THE first defendant did not deny the availability of the properties, but only contended that the properties did not belong to the father, but they were properties allotted to him in a partition that took place in the year 1935, without any further specific details. But, according to him, the oral partition fetched about 13 acres to the father and about 14 acres which were in the suit to the first defendant. THE father had sold away all the properties that were allotted to him and there were none available for the plaintiff to stake a claim.III. THE lower Court's approach:

(3.) LEARNED Senior Counsel Mr.V.K.Muthuswamy appearing for the appellant contended that the joint family character of the properties had not been denied, but the defendants had only set up a plea of partition between the father and the son and that the 1st defendant's father died in the year 1959. According to him, unless the first defendant established that the suit properties had all been allotted in the partition to the first defendant, the plaintiff could not be non-suited. He would say that, there was no evidence worth the name to establish such a circumstance and the inference of a partition by the only fact that the father had sold some properties under EX.A8 and B24 was clearly wrong. It could not prove that whatever properties had been allotted had been sold. He particularly made reference to the extent of properties sold under the aforesaid two documents as comprised in 8.49 acres and if indeed the father had been allotted more than 12 acres of land, it was for the first defendant to show that there were some more items of properties available to lend credence to his contention that all the properties allotted to him had been sold.