In a suit for partition, all the sharers are necessary parties, and failure to implead all the sharers will result in the suit being dismissed for non-joinder.

1. This second appeal is directed against the Judgment and Decree dated 19.05.2003 passed in S.C.A.S.No.30 of 1997- FTC II A.S.No.7 of 2003 on the file of the Additional District & Sessions Judge (FTC-II) at Tindivanam, confirming the Judgment and Decree dated 24.12.1996 passed in O.S.No.914 of 1991 on the file of the Additional District Munsif Judge, Tindivanam.

2. Parties are referred to as per their rankings in the trial Court.

3. Suit for Partition.

4. The case of the plaintiffs, in brief, is that the suit property situated in survey No.420/2 measuring 10.04 cents originally belonged to M.E.Ganapathy Mudhaliyar and his three sons and the deceased first plaintiff and the defendants 1 & 2 are the sons of M.E.Ganapathy Mudhaliyar and the properties belonging to the joint family of the above said persons were divided during the life time of M.E.Ganapathy Mudhaliyar by way of a registered partition deed dated 09.01.1960 and accordingly, the sharers enjoyed the properties as allotted to them separately. While so, M.E.Ganapathy Mudhaliyar settled the property comprised in survey No.420/2 measuring 10.04 cents exclusively in favour of his wife Kalyani ammal with the consent of his sons prior to the above said partition and the same had been accepted by his sons and accordingly, the above said property was not included in the partition effected by way of the partition deed dated 09.01.1960 and accordingly, the above said property belonged to Kalyani ammal and the patta was also mutated in the name of Kalyanai ammal and accordingly, Kalyani ammal was enjoying the property as her own by paying kist etc., Accordingly, Kalyani ammal, out of the above said extent of 10.04 cents of land, settled the southern extent of 7.04 cents of land in favour of the deceased first plaintiff and the defendants during 1980 and accordingly, the deceased first plaintiff and the defendants are equally entitled to the suit property comprised in survey No.420/2 measuring an extent of 7.04 cents on the southern side of the total extent of 10.04 cents and as such, the deceased first plaintiff is entitled to 1/3 share in the suit property. Kalyani ammal, even during her life time, settled an extent of 3 acres of land in the above said survey number located on the northern side in favour of her daughter Lalitha ammal and accordingly, the said extent is in the possession and enjoyment of Lalitha ammal. Inasmuch as the suit property had been left to be enjoyed jointly by the deceased first plaintiff and the defendants 1 & 2 and as the parties are unable to enjoy the same jointly subsequently, according to the deceased first plaintiff, demanding his share of the property, he claimed partition by way of a legal notice dated 19.08.1990 and the defendants did not respond to the same and left with no other alternative, it is stated that the deceased first plaintiff was necessitated to lay the suit for appropriate reliefs and during the pendency of the suit, the first plaintiff died leaving behind the plaintiffs 2 to 5 as his legal representatives.

5. The case of the first defendant, in brief, is that the averments contained in the plaint are true and the first defendant adopts the same in all aspects. It is only the second defendant, who is evading to effect the partition of the plaint schedule property, by creating a false deed in the name of his wife in respect of the suit property and the second defendant cannot lay any separate and exclusive claim over the plaint schedule property. The plaint schedule property is the joint family property belonging to the deceased first plaintiff and the defendants and hence, the first defendant also prays for effecting partition and allot his 1/3 share in the suit property and accordingly, prayed for the disposal of the suit.

6. The case of the second defendant, in brief, is that the suit is not maintainable either in law or on facts. It is true that survey No.420/2, new survey No.522, originally consisted of 10.04 cents of