The court clarified that Section 23 of the Hindu Succession Act did not prohibit the plaintiff from claiming partition and occupying a portion of the property, and that the operation of Section 23 would come into effect only at the time of final decree proceedings.

This second appeal is focused by D3, animadverting upon the judgment and decree dated 07.04.2005 passed by the learned III Additional Judge, City Civil Court, Chennai in A.S.No.307 of 2004 confirming the preliminary decree dated 05.02.2004 passed by the learned VI Assistant Judge, City Civil Court, Chennai in O.S.No.6174 of 1995.

2. The parties are referred to here under according to their litigative status and ranking before the trial Court.

3. Compendiously and concisely, the germane facts absolutely necessary for the disposal of this Second Appeal would run thus:

a] The first respondent/plaintiff filed the suit for partition seeking the following reliefs: - To pass a judgment and decree as follows:

(i) declaring the plaintiff is entitled to 1/5 th share in premises bearing Old Door No.60, New Door No.27, Kannaiah Chetty Garden 3rd Street, Peravallur, Madras 600 082 more fully described in the plaint A schedule property here under and plaint B schedule property in equity.

(ii) to appoint an Advocate Commissioner to divide and allot the plaintiff's 1/5 th share in the plaint A schedule property and if the premises is not capable of division direct the Advocate Commissioner to sell the plaint A schedule property and pay 1/5 th share out of the sale proceeds.

(iii) for a permanent injunction in favour of the plaintiff in respect of the B schedule property in premises No.Old No.60, New No.27, Kannaiah Chetty Garden 3rd Street, Peravallur Madras 600 082 and more fully described in the plaint B schedule property restraining the defendants their men, agents, servants person or person claiming through or under them from interfering with the plaintiff's peaceful possession and enjoyment of the B schedule property and

(iv) for costs, (extracted as such) inrespect of the lease hold right over the suit property found described in the schedule of the plaint.

b] The averments in the plaint could succinctly and precisely be set out thus:

The plaintiff is the sister and the defendants are her brothers, all being the children of late T.K.Pachaiyappa Mudaliar, who obtained the suit property on lease and started enjoying it during his life time. In fact, the suit property belongs to the estate of Ramaiah Naidu. The said Pachaiyappa Mudaliar had put up super-structure on the land taken on lease and he started enjoying it with his family members. He died intestate on 18.12.1972 leaving behind his wife Govindammal and his five children, who are the plaintiff and the defendants to succeed his rights over the suit property. The children of the Pachaiyappa Mudaliar were minors at the time of his death. Subsequently, Govindammal also died intestate on 19.02.1984. The plaintiff was living with the defendants till 1987 and thereafter, she went to her mother-in-law's house with her husband and started living there. She had put up the tiled super structure measuring 18' East to West and 12' feet North to South out of her own funds in the eastern corner of the plaint scheduled property for her own residence with the concurrence of the defendants from the month of February 1994 onwards and she has been in possession and enjoyment of the said portion, which is described as the B schedule in the plaint. While so, D3 attempted to dispossess her from the suit scheduled property. Thereupon, dispute erupted, which resulted in the filing of the suit claiming 1/5 th share in the entire A scheduled property.

c] Per contra, denying and refuting, challenging and impugning the averments/allegations in the plaint, D3 filed the written statement, which could tersely and briefly be set out thus:

The suit is not at all maintainable. She had not put up the super structure in the B scheduled property as described in the plaint. The plaintiff is not residing in the B scheduled property described in the plaint, which forms part of the A scheduled property; but she is actually residing at No.9, Thiru.Vi.Ka.Street, Vyasarpadi, Chennai 600 039. T.K.Pachaiyappa Mu