ANDIVEL CHETTIAR AND ORS. Vs. MURUGESAN AND ORS.

JUDGEMENT

(1.) This second appeal arises out of the judgment and decree dtd. 7/2/2014 passed by the learned District Judge, Dindigul, in A.S.No.46 of 2011, reversing the Judgment and decree dtd. 25/7/2011 passed by the learned Sub Judge, Palani, in O.S.No.30 of 2008.

(2.) Brief facts of the case is as follows:- The suit property originally belonged to the grand mother of the plaintiffs by name Rangammal. The said Rangammal along with his brothers Ranga Samy Chettiar and Gurusamy Chettiar have purchased the suit property and other properties on 2/9/1957. During their life time, the grand mother of the plaintiffs, namely, Rangammal partitioned her /rd share and she was in possession and enjoyment of the property. The said Rangammal died on 1/11/1971 leaving behind her legal heirs, namely, the mother of the plaintiffs one Nachammal and her brother, the first defendant herein. After that the said Nachammal, the mother of the plaintiffs and the first defendant jointly enjoyed the property. The mother of the plaintiffs died on 10/3/2007 leaving behind her legal heirs. After the death of his mother, the plaintiffs demanded partition with the first defendant. At that time, the plaintiffs came to know that the first defendant executed the settlement deed in favour of his wife the second defendant on 25/5/2004. Again, the second defendant, on 29/11/2007 sold the suit property to the defendants 3 and 4. Hence, the plaintiffs came forward with the suit for partition, for permanent injunction, for cancellation of sale deed executed by the 2nd defendant in favour of the defendants 3 and 4 and also for costs.

(3.) The defendants 1 and 2 denied the rights of the plaintiffs and stated that the first defendant executed the settlement deed in favour of the second defendant and the second defendant executed the sale deed in favour of the defendants 3 and 4. The suit property was originally purchased by mother of the first defendant and her brother and subsequently in the oral partition between Rangammal, Gurusamy Chettiar and mother of the first defendant, the suit property allotted to the family of the first defendant. The first defendant was in possession and enjoyment of the property even during the life time of Nachammal. The said Nachammal was never in possession and enjoyment of the suit property. On 29/6/1972, the first defendant obtained loan from the father of the plaintiffs one Arumugam Chettiar by mortgaging the suit property as his own property. The first defendant has also constructed a building in the suit property and obtained patta and paid Kist payable to the Panchayat. Then, he settled the same in favour of his wife, the second defendant herein and in turn, the second defendant sold portion of the property to the defendants 3 and 4. Hence, the plaintiffs are not entitled to partition. Thus, the defendants 1 and 2 prays for dismissal of the suit.