- (1.)PLAINTIFF is the appellant.
(2.)THE plaintiff filed the suit for partition and separate possession of her 1/4th share in item 1 and 3/8th share in item 2 of the suit property and for accounting. THE case of the plaintiff is as follows: THE first defendant is the elder brother of the plaintiff and defendants 2 and 3 of the purchasers of the suit property from the first defendant. THE first item of the suit property originally belonged to the plaintiff and her brother the first defendant ancestrally. In the second item of the suit property, half portion belonged to the plaintiff and the first defendant ancestrally and the other half portion was purchased by their father Nagasami Ayyar out of his own funds and it is his self acquired property. Nagasami Ayyar along with the plaintiff, the first defendant and their mother was in possession and enjoyment of the suit properties and as such the plaintiff is the co-owner along with the first defendant. Nagasami Ayyar died on 5.3.1956 leaving behind him, the plaintiff, the first defendant and their mother. So, the plaintiff, the first defendant and their mother succeeded to the properties of Nagasami Ayyar. Subsequently, the mother of the plaintiff and the first defendant died on 3.7.1961 intestate leaving behind her, the plaintiff and the first defendant alone as her heirs. So, the plaintiff is entitled to a share out of her mother's properties. THE plaintiff is entitled to 1/3rd share in the first item of the suit property and she is also entitled to 1/4th share in the ancestral half portion of item 2. THE plaintiff was in possession of this portion along with the first defendant. After marriage, the plaintiff has been residing with her husband even during the lifetime of her father. THE first defendant, without the knowledge and consent and permission of the plaintiff, sold the first item of the suit property to the second defendant by registered sale deed. THE first defendant has no right to sell the plaintiff's share in the first item. THEy plaintiff is entitled to 1/4th share in item one. THE first defendant also without the knowledge and consent of the plaintiff, sold the second item to the third defendant by a registered sale deed dated 17.11.1972. THE first defendant has no right to sell away the plaintiff's share in the second item also. So, the sale in respect of the plaintiff's share in the suit property is not binding on the plaintiff. THE plaintiff continues to be in joint possession of the second item also. THE defendant is not amenable for partition and separate possession. Hence, the plaintiff has come forward with the suit for partition and separate possession of her share in the suit properties.
The first defendant filed written statement contending as follows: The suit properties are the ancestral properties of this defendant. The suit properties were possessed, owned and enjoyed by the grandfather of this defendant. After his death, they devolved upon the father of this defendant as the sole surviving coparcener. The father of this defendant died on 5.3.1956 before the commencement of the Hindu Succession Act, 1956 and the properties of the father devolved on this defendant as his only son by survivorship. So, the plaintiff and the mother of this defendant have no right, title or interest on the suit properties. This defendant has been in open, continuous possession and enjoyment of all the properties of the father including the suit properties in his own absolute right as full owner. This defendant has been leasing out the properties to various tenants and collecting the rents and income therefrom for his own use and benefit. Mutation proceedings were taken even during the lifetime of the mother of this defendant to the knowledge of the plaintiff and this defendant has been paying taxes. The plaintiff was given in marriage by the father of this defendant at heavy expenses according to the communal rites and rituals. This defendant alone was dealing with the suit properties as absolute owner. The plaintiff has no right over the suit properties and it has been extinguished by efflux of time. Only this defendant is in continuous and uninterrupted possession and enjoyment of the suit properties. This defendant sold the suit properties to the other defendants by two registered sale deeds for valuable consideration and from the date of purchase, the other defendants have been in possession and enjoyment of their respective properties. The plaintiff is also aware of the sale in favour of defendants 2 and 3. She never demanded partition of the properties at any time. The first defendant had been in continuous possession and enjoyment of the suit properties in complete exclusion of the plaintiff for several decades. So, the defendant is not in joint possession as co-owner. The plaintiff is not entitled to partition and separate possession asked for.

The second defendant filed written statement contending that she has been in exclusive possession and enjoyment of the second item as owner thereof paying taxes in her name and the first defendant got the suit property by survivorship after the death of his father and the plaintiff had never been in joint possession of the suit property and the father of the plaintiff had number of properties apart from the suit properties and the plaintiff has not mentioned anything about them.

The third defendant filed written statement contending as follows:

This defendant purchased item 2 of the suit properties from the first defendant for valuable consideration after ascertaining the first defendant's title. The first defendant was the absolute owner and after the purchase by this defendant, this defendant is in possession and enjoyment. The plaintiff is not the coparcener and she is not entitled to the suit properties. There is no question of joint possession. Only the first defendant was the absolute owner of the suit properties.

The suit was tried by the Sub Judge, Madurai and it was dismissed. In arriving at such conclusion, the Sub Judge held that defendants 1 to 3 have acquired title by adverse possession since the plaintiff, after the date of her marriage, did not claim any right in the properties and the plaintiff was also not given any share in the income from the properties and only the first defendant was in possession and enjoyment of the suit properties and has acquired title to the properties by adverse possession and defendants 2 and 3 who are the purchasers from the first defendant are the owners of the suit property. The trial court also found that all the properties of Nagasami Ayyar are not included in the suit and the other purchasers of the first defendant are also not added as parties in the suit and even on that ground, the suit is not maintainable and the suit is barred by limitation since the plaintiff did not file the suit within the period of three years from the date of death of her mother.

(3.)AGGRIEVED against that judgment and decree, the plaintiff has come forward with the present appeal.
Point for consideration is whether the plaintiff is entitled to partition and separate possession of her share.

Mr.R.Parthasarathy, learned counsel for the appellant submitted that the plaintiff's father Nagasami Ayyar died on 5.3.1956 leaving behind him, his wife, his son the first defendant and the plaintiff his daughter and the mother died on 3.7.1961 leaving behind her the plaintiff and the first defendant and on the death of her husband, the mother got the half share of her husband and the other half share went to the son the first defendant and the mother inherited the half share of the joint family property, which were inherited by her under Sec.3(2) of the Hindu Women's Rights to Property Act and it had become enlarged into an absolute right by the operation of Sec.14(1) of the Hindu Succession Act which came into force on 17.6.1956 and the mother became the absolute owner of her half share in the suit property by virtue of Sec.14(1) of the Hindu Succession Act and on her death, her heirs the plaintiff-daughter and the first defendant-son became each entitled to 1/4th share in the joint family property and so, the plaintiff is entitled to 1/4th share in item 1 and half of item 2 of the suit property and the remaining half share in item 2 of the suit property is the self acquired property of the father and so, the plaintiff is entitled to 3/8th share in the second item of the suit property.