KANNIAPPAN Vs. PACHAIYAMMAL

JUDGEMENT

(1.) The defendants 2 to 8 in the suit in O.S.No.77 of 2010 on the file of the Sub Court, Kulithalai, are the appellants in the above Second Appeal.

(2.) The respondents herein, as plaintiffs, filed the suit in O.S.No.77 of 2010 for partition and separate possession of their 1/3rd share in all the suit properties and for other incidental reliefs. The suit properties are described in three schedules schedule A, B and C. It is the case of the plaintiffs / respondents that suit 'A' schedule properties are the ancestral properties of one Palaniyandi. It is also stated that Palaniyandi had three sons by name Pichai, Arumugam and Malaikolundan. The first defendant is the wife of Pichai and the second defendant is the son of first defendant. Arumugam is the third defendant and plaintiffs are the wife and children of Malaikolundan. It is stated that Pichai was the eldest son who managed all the suit 'A' schedule properties after the demise of his father and that suit 'B' schedule properties were purchased in the name of his wife, namely, the first defendant under four different sale deeds and that 'B' schedule properties were treated and enjoyed as joint family properties by the said Pichai and his two brothers Arumugam and Malaikolundan. It is further stated that out of the joint family income and nucleus for the benefit of the said joint family suit 'C' schedule properties were also purchased in the name of third defendant under a registered sale deed dated 18.09.198 It is further stated that the suit 'C' schedule properties were also kept, treated and enjoyed by all the members of the joint family as the joint family properties. It is further stated that all the suit properties were kept in common and enjoyed by all the three brothers as joint family properties. After the death of first defendant, defendants 4 to 8 were impleaded as legal heirs of the first defendant being the children of first defendant's predeceased daughter, one Periyakkal. It is further stated that the eldest son of Palaniyandi, namely, the husband of the first defendant died about 20 years back leaving behind the defendants 1 and 2 as his legal heirs. It is stated that the plaintiffs are the wife and son and daughters of the third son of Palaniyandi by name Malaikolundan.

(3.) In the written statement filed by the first defendant, the relationship between the parties is admitted. The fact that the suit 'A' schedule properties belong to Palaniyandi is not disputed. However, it is contended by the defendants 1 and 2 that there was an oral partition of plaint 'A' schedule properties about 35 years back and that therefore, the suit for partition is not maintainable. It is specifically stated that during the life time of Palaniyandi, namely, the grand father of plaintiffs 2 to 4, 'A' schedule properties were divided among the three sons and all of them are in enjoyment of the properties allotted to them in the oral partition. It is further stated in the written statement that all the three sons of Palaniyandi are in enjoyment of the properties allotted to them in the oral partition and has obtained patta independently and that they are in exclusive possession and enjoyment of the properties allotted to them. The defendants 1 and 2 also pleaded ouster but has not detailed as required in law.