JUDGMENT :

Prayer: First Appeal filed under Order 44 Rule 1, r/w. Section 96 of C.P.C., against the judgment and Decree passed in O.S.No.525 of 2011 on the file of the I Additional District and Sessions Judge, Tirupur dated 02.04.2013.

Aggrieved over the judgment and decree dated 02.04.2013 passed in O.S.No.525 of 2011 on the file of the I Additional District and Sessions Court, Tirupur, the plaintiff has preferred the First Appeal.

2. For the sake of convenience, the parties are referred to as per their rankings in the trial court.

3. Suit for partition.

4. The case of the plaintiff in brief is that one Chennimalai Gounder and Rangappa Gounder are brothers, being the sons of Rayappa Gounder. Chennimalai Gounder had three sons namely Karuppusamy Gounder, Pattae Gounder and Appachi Gounder. An extent of 8.40 acres of land with a well in S.F.No.180 originally belonged to the family of Chennimalai Gounder and his brother Rangappa Gounder ancestrally. Chennimalai Gounder and his three sons were cultivating the said lands along with Rangappa Gounder. From and out of income derived form the ancestral lands and by joint exertion, Chennimalai Gounder consisting of himself and his three sons had purchased an extent of 1.45 acres of land in S.F.No.42 and an extent of 6.54 acres in S.F.No.44 and a well in S.F.No.180 by way of a sale deed dated 18.07.1938. The abovesaid sale deed was taken in the name of Chennimalai Gounder, the Karta of the family, however the said properties were enjoyed as the joint family properties. Chennimalai Gounder died in the year 1948. On his demise, his three sons and Rangappa Gounder had partitioned the ancestral properties by way of a partition deed dated 09.08.1961, under which an extent of 4.20 acres in S.F.No.180 came to be allotted to the share of the sons of Chennimalai Gounder. Subsequently, Chennimalai Gounder’s three sons had partitioned the abovesaid extent of 4.20 acres orally and by way of the same, an extent of 1.33 acres described in the plaint A schedule was allotted to the share of Pattae Gounder. The properties purchased under the sale deed dated 18.07.1938 were partitioned amongst the three sons of Chennimalai Gounder orally and by way of the same, an extent of 3.58 acres described in the plaint B schedule were allotted to the share of Pattae Gounder. The house property set out in the plaint C schedule was allotted to Pattae Gounder by way of the partition deed dated 17.11.1980. Thus the plaint schedule properties are the ancestral and joint family properties of Pattae Gounder. The plaintiff and the defendants 1 and 2 are the sons and the defendants 3 and 4 are the daughters of Pattae Gounder. The plaintiff and the defendants 1 and 2 acquired a right by birth in the ancestral properties. Pattae Gounder died on 25.08.1998. On his demise, the plaintiff and the defendants 1 and 2 are each entitled to 6/20 share in the plaint schedule properties whereas the defendants 3 and 4 each entitled to 1/20 share in the plaint schedule properties. The defendants are, on the wrong impression that they are also entitled to obtain equal share in the plaint schedule properties by virtue of the Act 39 of 2005, refusing to amicably allot the share in the plaint schedule properties to the plaintiff and hence according to the plaintiff, he has been necessitated to seek for the partition in the plaint schedule properties and accordingly laid the suit for appropriate reliefs.

5. The defendants 1 and 2 have filed a memo before the trial court accepting the division of the properties as prayed for by the plaintiff and also paid the Court fees and accordingly prayed for the allottment of their shares in the suit properties.

6. The defendants 3 and 4 resisted the plaintiff’s suit and after admitting the relationship between the parties, putforth the case that the properties acquired by Chennimalai Gounder are his separate properties and contended that the plaintiff has to establish the partition effected on 09.08.1961 as well