POINT OF LAW: Suit property vague - The extent of property mentioned in the plaint is different from the extent mentioned in the document. The value of the property not properly calculated. The possession of the property is not with the plaintiff. The Court fees ought to have paid under Section 37(1) of the Court Fees and Suit Valuation Act

JUDGMENT :-

(Prayer: Appeal Suit has been filed under Section 96 r/w Order XLI Rule 1 of C.P.C., against the judgment and decree of the V Additional District and Sessions Judge, Coimbatore dated 13.12.2013 in O.S.No.46 of 2009.)

1. The appeal arising from the suit for partition. Before the trial Court, the appellant herein was the plaintiff. Respondents 1 to 7 were the defendants. The suit for partition was partly allowed. Against the disallowed portion, the appeal suit is filed by the aggrieved plaintiff. Pending appeal, the 3rd respondent died. His legal representatives were impleaded as respondents 8 to 10. Claiming share in the suit property due to change in law pending appeal, the daughters of the appellant impleaded as respondents 11 to 14 vide order dated 07/09/2015.

2. The case of the plaintiff as found in the plaint:

Periyamarimuthu Chettiar had three sons by name Kandasamy, Arumugam and Karuppasamy. He established a textile business at Pollachi in the name and style of Thiru N.K.Periyamarimuthu Chettiar and Sons. Periyamarimuthu Chettiar along with his wife Mallammal and three sons carried on the textile business as joint family business. From the profit, properties were purchased in the name of his son Arumugam. In the year 1935, Karuppasamy Chettiar relinquished his right in the joint family business. Later, in the year 1940, partition was effected between the family members namely Periyamarimuthu Chettiar, his wife Mallammal, his sons Kandasamy, Arumugam and Karuppasamy vide registered partition deed dated 19/11/1940. Under the said partition deed, Item 1 of the present suit property was allotted to Kandasamy listed under 'A' schedule and the item 2 of the present suit property was allotted to Mallammal listed under 'D' schedule. After the demise of Mallammal, the property under 'D' schedule was divided among her legal heirs vide, partition deed dated 06/03/1967. The item 2 of the present suit was allotted to Kandasamy in the said partition. On 01/05/1990 Kandasamy died intestate. In respect of other immovable properties of Mallammal, the plaintiff and defendants 1 to 6 had executed a partition deed dated 15/11/1999 duly registered on 08/02/2000. Under this partition deed, the family business was transferred to the 5th defendant.

3. The plaintiff and defendants 1 to 6 as children of Kandasamy entitle for equal share in the suit property. While so, the fifth defendant is trying to alienate the suit properties to the third parties. Hence, suit for partition filed seeking 1/7th share in the suit property.

4. Pending suit, on 03/11/2008, the 5th defendant had sold 1.61 acres of land comprising in S.No.125/1,124/2,124/5,125/6 with 1/4th right in the pathway and 1/4th right to draw water in the well situated in S.F.No.125/3 to the 7th defendant. The said sale is sham and nominal by obtaining patta on producing false and fabricated document. The patta was cancelled by RDO on the complaint given by the plaintiff. The appeal against the order of the RDO preferred by the 5th defendant is pending before the DRO/Additional Collector. The 5th defendant obtained patta by producing forged Will purported to have been executed by N.K.P.M.Kandsamy Chettiar. Therefore, by way of amendment, additional relief sought to declare the sale deed dated 03/11/2008 in favour of 7th defendant is void ab inito and does not bind the plaintiff.

5. Case of the first defendant as found in his written statement:

The averment in the plaint that the properties were purchased from the income of joint family business established by Periyamarimuthu Chettiar denied. The averment that the suit properties were enjoyed in common denied. The description of suit properties mentioned as item 1 is vague and unidentifiable. The suit with the property description without boundaries and vague description liable to be dismissed.

6. The 4.40 acres of land and the house therein shown as item 2 property in the suit originally owned by the three sons of Periyamarimuthu Chettiar.