( 1. ) THIS Second Appeal is filed by the Plaintiff against the Judgement and Decree dated 28.06.2007 passed in AS.No.8/2007 by the learned District Judge, Sivagangai, though confirming the Decree for partition, but modifying the shares of the parties allotted by the learned District Munsif, Sivagangai in OS.No.41/2003 dated 22.6.2004.

( 2. ) THE Plaintiff filed the above said suit, claiming a share of 15/45th (1/3rd share) in the items 1 and 2 of the suit property situated in Kuruthangudi Village, Vannigudi group of Sivagangai Taluk and for permanent injunction restraining the 4th Defendant from interfering with the peaceful possession and enjoyment of the suit property by the Plaintiff.

The undisputed genealogy graph of the family is given under:-

( 3. ) THE case of the Plaintiff is that the suit property belonged to Ramayee, having purchased the 1st item by the sale deed dated 13.03.1935 in Ex.A2 and the 2nd item originally belonged to Arulandu and the same was mortgaged to Kuttal, the mother of Ramayee, which was not redeemed and hence, Kuttal and after her, Ramayee was in possession and enjoyment. THE patta stood in the name of Ramayee.

( 4. ) THE said Ramayee died intestate in the year 1969. Her first husband is Muthukonar. After his death, she got married to one Alagupillai. Through her first husband, she begot one daughter, namely, Soundaram. Through her second husband, namely, Alagupillai, she got a daughter and a son, namely, Poomayil and Rajangam. After the death of Ramayee, who died intestate, the properties devolved upon Soundaram, Poomayil and Rajangam, each taking 15/45, that is, 1/3rd share in the properties.

Poomayil died early in the year 1973. Her share of 1/3rd devolved upon her two sons and two daughters, namely, Tamil Selvan (Plaintiff), Boopalan (2nd Defendant), Indra Devi and Kannathal (3rd Defendant) and her husband Balasubramanian (1st Defendant) and each got 1/15 share in 1/3rd share of Poomayil.

( 5. ) RAJANGAM died in the year 1974. He was unmarried. It is the specific case of the Plaintiff that he executed a Will dated 2.8.1973 bequeathing his properties on his sister's children, namely the Plaintiff, Defendants 2 and 3 and Indra Devi. Therefore, the Plaintiff got 5/45th share in the RAJANGAM's property.

( 6. ) AS far as Soundaram is concerned, she was a divorcee. She had no issues. She also executed a Will dated 22.8.1985 bequeathing her properties in favour of the Plaintiff, Defendants 2 and 3. She died in the year 1987. In the share of Soundaram i.e. 15/45th share, the Plaintiff got 5/45th share.

It is also stated in the plaint that the Plaintiff and the Defendants orally divided the other properties except the suit items 1 and 2 and they are in possession and enjoyment of their respective share as regards the other properties. But, they enjoyed the suit items alone jointly and there was no division in regard to the suit items.

( 7. ) SINCE the 3rd Defendant, in whose name the patta stood as he was the elder in the family, was making attempts to sell the suit items in favour of the 4th Defendant and therefore, the Plaintiff has filed the suit for partition of 15/45th share i.e. 1/3rd in the suit items and for permanent injunction.

( 8. ) THE suit was resisted by all the Defendants. THE 1st Defendant filed a Written Statement, denying the share as claimed by the Plaintiff and contended that out of 360 shares, the Plaintiff is entitled to 94/360 and the 1st Defendant is entitled to 78/360. He accepted the genealogy put forward by the Plaintiff and also the Wills executed by Rajangam and Soundaram respectively bequeathing their share in favour of the sons and daughters of Poomayil. He would contend that the share fallen to Poomayil, his wife would devolve upon him and his children. Likewise, the share of Indra Devi after her death had fallen to him along with his children as father of Indra Devi. So according to him, he is entitled to 78/360th share and the Plaintiff is entitled to 94/360th