IMPORTANT POINTS
(1) Partition – In a suit for partition and shares are dependent upon nature of status and time at which t partition is decreed – Shares fluctuate not only with happening of events in family but also with circumstances established by parties to lis.
(2) Admission is a conscious and deliberate act and not something that could be inferred – An admission could be a positive act of acknowledgement or confession.

JUDGMENT :

(S.V.N. Bhatti, J.)

1. Leave granted.

2. The Defendant Nos. 3 to 5 in O.S. No. 357 of 1985 before the Court of the Subordinate Judge, Sankari, Coimbatore District, Tamil Nadu, are the Appellants in the Civil Appeal. The Appellants assail the judgment and decree of the Trial Court and the High Court of Judicature at Madras, dismissing the suit filed by Respondent No. 1 and Respondent No. 2 for partition and separate possession of the plaint schedule properties.

I. FACTUAL BACKGROUND

3. A genealogy is prefaced to appreciate the relationship between the parties: -

4. Respondent Nos. 1 and 2 in this Civil Appeal were the Plaintiffs in O.S. No. 357 of 1985 before the Trial Court filed for partition and separate possession of plaint schedule properties. The plaint schedule consists of three items of agricultural land in Amani, Kliyanoor, Agraharam and Pallipayam villages of Tiruchengode Taluk. The suit was filed against Respondent Nos. 3 and 4 herein. During the pendency of the suit, the Appellants filed I.A. No. 1019 of 1987 and were impleaded by the Trial Court as Defendant Nos. 3, 4 and 5.

5. Muthusamy Gounder is the propositus of the parties to the suit and the claim for partition arose on his demise in the year 1982. The plaint averments are that Respondent No. 1 is the son of the propositus through Respondent No. 2/Ramayee. Respondent No. 3 is also the son of the propositus through Respondent No. 4/Ammasi Ammal. The marriage of Respondent No. 2 with the propositus is alleged to have happened in the early 1950s. It is averred in the plaint that Respondent Nos. 1 to 4 lived together and had a common kitchen during the lifetime of Muthusamy Gounder. Respondent Nos. 1 and 2 claim that a coparcenary/joint Hindu family existed, and Respondent Nos. 1 to 3 inherited the plaint schedule properties. The plaint schedule properties are treated as joint family/ancestral properties. The demand of Respondent Nos. 1 and 2 through legal notice dated 21.06.1984 did not result in a reply from Respondent Nos. 3 and 4, or result in partition, the suit for partition of plaint schedule into three equal shares was filed and allot to Respondent Nos. 1 and 3, each one such share. The other share notionally allotted to Muthusamy Gounder, and since he died in 1982, is divided and allotted to Respondent Nos. 1 to 4 in accordance with law.

6. We have specifically referred to the share demanded by Respondent Nos. 1 and 2 in O.S. No. 357 of 1985 because the shares of the parties resulted in change with the impleadment of Appellants. Respondent Nos. 3 and 4 filed written statements denying the factum of marriage between Respondent No. 2 and Muthusamy Gounder, stating that Respondent No. 1 alone is a member of the Hindu Undivided Family (HUF) of Muthusamy Gounder.

6.1 As a natural result of the denial of marriage and relationship between Muthusamy Gounder and Respondent No. 2, the other averments in the plaint, namely, the existence of coparcenary and ancestral properties; the rights of Respondent Nos. 1 and 2 for partition, are specifically denied. The Appellants as Defendant Nos. 3 to 5 claimed that Appellant Nos. 1 and 3 are the son and daughter, respectively, of Muthusamy Gounder through Appellant No. 2/Chinnammal. The Appellants further averred that upon the demise of the propositus, the parties to the suit have inherited the plaint schedule properties as the legal heirs of the late Muthusamy Gounder. The Appellants and other legal heirs of Muthusamy Gounder were in joint possession and enjoyment of the plaint schedule properties. Therefore, the Appellants, along with other legal heirs/successors of Muthusamy Gounder, pray for partition of the coparcenary headed by Muthusamy Gounder. The Trial Court considered the following issues: -

1. Whether the Plaintiffs are entitled to the reliefs claimed in the suit?

2. Whether Defendant Nos. 1 to 5 are also entitled to shares as legal heirs of the deceased Muthusamy Gounder in his estate?

3. To what relief?

7. The