SHANMUGHAM Vs. JAYALAKSHMI

JUDGEMENT

(1.) The appellant is the second respondent in A.S.No.15 of 1997. The first respondent herein filed a suit in O.S.No.15 of 1983. The said suit was dismissed by the lower Court. As against the dismissal of the suit, the first respondent filed an appeal in A.S.No.15 of 1997 before the lower Appellate Court. The lower Appellate Court modified the order of the lower Court. As against the order of the lower Appellate Court, the appellant has filed this second appeal.

(2.) The case of the plaintiff before the trial court is as follows: The plaintiff filed suit for partition. The plaintiff is the grand daughter of Raghava Naicker and daughter of Sabapathy Naicker. The said Raghava Naicker had five sons namely, Dhanapal, Sabapathy Naicker, Raghava Naicker/ Adikesava Naicker, Kathirvan Naicker and Murugesa Naicker. The third defendant/ appellant is the brother of the plaintiff. He was born to the first wife of Sabapathy Naicker namely, Bhagyammal. After the death of the said Bhagyammal, Sabapathy Naicker married the plaintiff's mother Babiammal, who is the seventh defendant in the suit. The said Sabapathy Naicker died in the year 1978 leaving behind the plaintiff and defendants 3 and 7 as his legal heirs. Accordingly, they are entitled to succeed Sabapathy Naicker.

(3.) Initially, the Schedule properties were joint family properties of Raghava Naicker and his sons. All the five sons jointly exerted in the ancestral property and enjoyed the yield jointly along with Raghava Naicker. The properties yielded sufficient income and there was surplus funds. With the surplus funds, several properties were acquired and they also enjoyed the joint acquisitions. Except the third defendant, all the persons were living in the joint family house. During his lifetime, the plaintiff's grandfather made some arrangement amongst his sons. Though there was actual partition, inorder to maintain the properties, some of the properties were divided inbetween the legal heirs of Raghava Naicker for easy mode of enjoyment and cultivation. Therefore, all the properties were treated as joint family properties.