K.AMBIGAPATHY Vs. K.SUBHA

JUDGEMENT

(1.) The defendants 1 to 5 in OS No.5743 of 2012 having suffered a decree for partition and separate possession of the plaintiffs 1/8th share each in the suit property have come up with this Second Appeal.

(2.) According to the plaintiffs, the suit property was allotted to their father Kalimuthu, by the Tamil Nadu Slum Clearance Board in the year 1985. The said Kalimuthu died intestate on 25.10.1999. Thereafter, the Tamil Nadu Slum Clearance Board, viz. the fourth respondent herein, executed a Sale Deed in favour of the first defendant wife of Kalimuthu on 26.06.2001. The first defendant had settled the property in favour of the fifth defendant on 26.04.2002, claiming that the first defendant held the property in a fiduciary capacity in trust for the heirs of Kalimuthu, the plaintiffs have come up with the suit for partition and separate possession. It is also their contention that the first defendant being only a sharer is not entitled to settle the entire property on the fifth defendant. Therefore, the plaintiffs would claim 1/8th share each in the property.

(3.) The suit was resisted by the defendants contending that the sale deed executed by the Tamil Nadu Slum Clearance Board, in favour of the first defendant confers an absolute title on her and as such, she is entitled to deal with the property in the manner she likes. It was also contended that the suit as framed for partition without seeking to set aside the Settlement Deed executed by the first defendant in favour of the fifth defendant is not maintainable.