P SUNDARRAJ Vs. BABY AMMAL

JUDGEMENT

(1.) The appellant/plaintiff filed a suit for partition of his 1/4th share in the 'A' and 'B' schedule properties. The Court below dismissed the suit. Aggrieved against the same, the appellant/plaintiff filed an Appeal in A.S.No.17 of 1999 before the lower appellate Court. The lower appellate Court, by its Judgment dated 25.06.1999, partly allowed the appeal filed by the appellant/plaintiff and granted preliminary decree for partition with regard to the 1/4th share in the 'A' schedule property and Item No.4 of 'B' schedule property. In sofar as other item in 'B' schedule property, the lower appellate Court confirmed the sale deed executed by the 2nd defendant in favour of the subsequent purchaser who is the 5th respondent before this Court. Aggrieved by the said Judgment, the present second appeal is filed before this Court.

(2.) The case of the plaintiff is as follows:-

(3.) However, on appeal, the plaintiff/appellant filed a petition in I.A.No.7 of 1999 under Order 41 Rule 27 CPC for marking additional documents. Accordingly, the lower appellate Court allowed the said application and permitted the appellant/plaintiff to mark the documents as Exs.A21, A22 and A2 Ex.A21 is the notice dated 05.08.1952 issued through lawyer by the first defendant's brother to manage the family properties. Ex.A22 is the copy of the partition suit register in O.S.No.90 of 1954 and Ex.A23 is the sale deed executed by the first defendant in favour of one Dhanalakshmi Ammal. On perusal of the above said documents, the lower appellate Court arrived the conclusion that the plaintiff/appellant is entitled for 1/4th share in the suit 'A' schedule property. Pending suit, the first defendant died leaving behind the plaintiff and other persons as legal heirs. On perusal of the Documents, namely, Ex.A21 Lawyer's Notice sent by the plaintiff's father's brother who managed the family properties and Ex.A22 suit register in O.S.No.90 of 1954, the lower appellate Court arrived the conclusion that the first defendant is none other than the plaintiff's father, the first defendant's brother managed the family properties as per Ex.A22 partition suit register, and Ex.A23, the sale deed executed by the first defendant in favour of third parties for the sale of his ancestral property. Accordingly, based on the sale proceeds, the suit 'A' schedule property was purchased. Accordingly, the lower appellate Court held that the 'A' schedule property is joint family property and hence the plaintiff is entitled for the share of the suit property. Accordingly, the lower appellate Court arrived the conclusion that the plaintiff is entitled 5/16 share in the suit 'A' schedule property. With regard to the 'B' schedule property, it was purchased by the second defendant with her own funds and subsequently the same was purchased by the defendants 5 to 8 and hence the plaintiff is not entitled to any share in the suit 'B' schedule property. Accordingly, the lower appellate Court rejected the claim of the appellant with regard to the suit 'B' schedule property.