JUDGMENT :

N. Sathish Kumar, J.

1. Aggrieved over the decree and the judgment of the trial Court passing preliminary decree in favour of the plaintiff, the present appeal is filed by the first defendant.

2. For the sake of convenience, the parties are referred to herein, as per their rank before the trial Court.

3. The brief facts, leading to the filing of this Appeal Suit, are as follows:-

The suit property belonged to one Shanumga Nadar. He had three sons and two daughters through his first wife Thayammal. After the death of the first wife, the said Shanmuga Nadar married the plaintiff in the year 1961 and begotten one girl child/12th defendant herein. The first and second defendants are the sons of the Shanmuga Nadar. Third defendant is the daughter of the said Shanmuga Nadar. Defendants 4 to 11 are the legal heirs of Thenammal, another daughter of Shanmuga Nadar. The said Shanmuga Nadar inherited the property. Thereafter, the suit property is in joint possession of his legal heirs. Hence, the suit for partition.

4. The first defendant denying the allegations in the plaint submitted that the plaintiff is the third party to the family. The plaintiff is not the wife of Shanmuga Nadar. The suit has been filed in collusion with the second defendant. It is contended that the suit in O.S. No. 66 of 1971 has been filed by the first and second defendants as against the father and the same was decreed. Now to blackmail the first defendant, the present suit has been filed by the plaintiff. The suit is barred by limitation as well as the principle of res judicata. The defendants 1 and 2 have become the owner of the property by virtue of the settlement deed dated 05.01.1945 executed by the grandfather of the defendants 1 and 2, namely Velayutha Nadar. The above document was the subject matter of the suit in O.S. No. 66 of 1971. As the defendants 1 and 2 had become owners as per the settlement deed, there was a partition between the first and second defendants in respect of the suit property and after the partition, the second defendant along with his son Velmurugan had sold his share under various sale deeds in favour of the first defendant. Item Nos. 5, 6 and 7 are in possession of Poyyazhi Gounder son of Kandasamy Gounder, who has purchased the property from the third party and he has not been added as party. Hence, the suit is barred by limitation.

5. The second defendant admitting the settlement executed by the grandfather of the first and second defendants, it is the contention of the second defendant that the above document has not been acted upon. Similarly, the partition deed executed between the defendants 1 and 2 was also not acted upon. Hence, his contention is that the properties are in joint possession. The first defendant is the kartha of the family. Hence, it is submitted that the properties are liable to be partitioned.

6. The 12th defendant filed a written statement stating that the judgment made in O.S. No. 66 of 1971 will not bind the 12th defendant and she is claiming right as the legal heir of late Shanmuga Nadar and she is entitled to get a share in the suit property as daughter of late Shanmuga Nadar. It is also admitted that the property is in possession of the family.

7. Based on the pleadings, the following issues were framed by the trial Court:-

1) 1. Whether the plaintiff and 12th defendant are the legal heirs of deceased V. Shanmuga Nadar?

2. Whether the suit is bad for non-joinder of necessary parties?

3. Whether the plaint schedule properties are in the joint possession and enjoyment of the plaintiff and defendants?

4. Whether the present suit is hit by res judicata?

5. Whether the plaintiff is entitled to 1/6th share in respect of the plaint schedule properties?

6. Whether the plaintiff is entitled to mesne profits?

7. Whether the plaintiff is entitled to get any other reliefs?

8. Before the trial Court, on the side of the plaintiff P.W.1 to P.W.3 were examined and Exs.A1 to A9 were marked and on the side of the defenda