JUDGMENT :

G.K. Ilanthiraiyan, J.

1. This appeal has been preferred as against the judgment and decree passed in A.S. No. 37 of 2001 on the file of the court of Additional Sub-Ordinate Judge, Nagapattinam dated 18.06.2003 in confirming the judgment and decree passed in O.S. No. 99 of 1995 on the file of the District Munsif, Nannilam dated 09.09.1998.

2. For the sake of convenience, the parties are referred to as per their ranking in the Trial Court.

3. The case of the plaintiffs in brief is as follows:-

3.1. The suit is for partition. The first defendant is the son of the first plaintiff's husband's first wife. The first plaintiff got married with her husband one Muthaiyan under Hindu rights and customs and gave birth to the plaintiffs 2 and 3. The first defendant, after death of his first wife got second marriage and thereafter, he left her father Muthaiyan after obtaining his house. Thereafter, the said Muthaiyan and the first plaintiff were lived in a hut put up at Poramboke land and after death of the said Muthaiyan, the first plaintiff is living there. The said house is the second item of the A schedule suit property. The suit properties belonged to the said Muthaiyan and all are joint family properties and the first item of the suit property shown as gift. In the second item of the suit property, the first plaintiff and the said Muthaiyan constructed a house. The 3rd item of the suit property belonged to the first plaintiff, which is derived from her ancestral property. Therefore, the plaintiffs caused notice to the first defendants. Since after death of Muthaiyan, the first defendant is in possession and enjoyment of the Item 1 and 3 of the suit schedule property. Further, the first defendant rented out the first item of the suit A schedule property and also has separate income and never shared the income with the plaintiffs. Therefore, filed a suit for partition of 3/5th share in the first item of the suit A schedule property and 3/10th share in the Item 2 and 3 of the suit A schedule property.

4. Resisting the same, the first defendant filed a written statement stating that he is the son of Muthaiyan, who died in the year 1975. He denied that the first plaintiff is not the legally wedded to the said Muthaiyan. The first plaintiff had lived for sometime with the said Muthaiyan as his mistress and they never lived jointly in the first item of the suit schedule property. Admittedly, the suit property belonged to the said Muthaiyan. The Government had issued Kudiyiruppu Patta in favour of the first defendant in respect of the first item of the property. The second item of the A schedule property is still classified as a Government poramboke. The government issued B Memo notice in the name of the wife of the first defendant by name, Achikannu. In fact, the said property was purchased by the wife of the first defendant. In so far as the third item of the suit A schedule property was usufructorily mortgaged in favour of one Kamaraju by the deceased Muthaiyan. The first defendant redeemed the same at the cost of Rs. 4,000/-. Therefore, the plaintiffs are not at all entitled for any share over the properties. The first plaintiff, immediately after death of Muthaiyan has left for Thirumananchery Village which is her native thereafter, she did not claim anything for her. The suit itself is barred by limitation. Further, the first defendant has got another their sister born through said Muthaiyan. Therefore, his sister has not been shown as a party in the partition suit and as such the suit is bad for non-joinder of necessary parties, since she has also entitled to her respective share. Therefore, prayed for dismissal of the suit.

5. The second defendant separately filed written statement and stating that the third defendant is not concerned in respect of the Item 1 and 3 of the suit A schedule property. The second item of the suit A schedule property is classified as poramboke land. Originally, the first defendant's wife one Achikannu