Decided on December 10,2003

GOURI Appellant
GOVINDAN Respondents


- (1.) This appeal is filed by the legal representatives of the 2nd defendant in a suit for partition. The plaintiff's claimed partition alleging that the tenancy right in respect of the plaint schedule property was obtained by the 1st defendant and his mother Chinnathai from Padinjare Pockiarath Tharavad which was a tenant under Chirakkal Kovilakam. Chinnathai's children are defendants 1 and 2, Lakshmanan and Savithri. The plaintiffs and defendants 6 to 8 are the legal heirs of Lakshmanan. Defendants 3 to 5 are the legal heirs of Savithri. After the death of Chinnathai, her rights also devolved on other children. The plaintiffs thus claimed 1/8 share to the plaintiffs and defendants 6 to 8 in a group.
(2.) First defendant filed a written statement contending that during the lifetime of Chinnathai, there was an oral partition of the property and northern section was taken by Chinnathai and the southern section was taken by the 1st defendant. The 1st defendant had constructed a building in the property allotted to him. He also contended that the 2nd defendant is in possession of the northern half of the property for and on behalf of other coowners. He claimed that the southern half of the property is not partible and that he is entitled to 1/4th share in the northern half. In the additional written statement filed by the 1st defendant the contentions of the 2nd defendant were refuted.
(3.) The 2nd defendant filed a written statement contending that though there was a lease in favour of the 1st defendant and mother Chinnathai for a period of four years as per the registered marupat dated 6th February 1941 and they kept possession of the property, they could not pay the yearly rent promptly. Chirakkal Kovilakam had filed a suit for arrears of rent against Pockiyarath Tharavad, 1st defendant and Chinnathai. Since 1st defendant and Chinnathai could not pay the rent, the property was surrendered in the year 1128 M.E. While the Pockiyarath Tharavad was in possession of the property, 2nd defendant took an oral lease on 1st Dhanu, 1128 M.E. Thereafter, the 2nd defendant has been in exclusive possession of the property. He filed O. A. No. 477 of 1970 for purchase of landlord's right and obtained certificate of purchase. The 1st defendant was given a portion of the property for conducting a shop building. Second defendant also assigned 5 cents to defendants 9 to 13 in 1982. Chinnathai had no right or possession over the suit property at the time of her death. The 2nd defendant also filed additional written statement contending that defendants 14 to 21 who were the legal representatives of deceased Krishnan have no right in the property. Pending suit, the second defendant died and his legal representatives, the appellants herein, have come on record and they adopted the contentions in the written statement filed by the deceased 2nd defendant.;

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