The main legal point established in the judgment is the determination of the availability of ancestral properties for partition and the rights of legal representatives in sharing the properties.

JUDGMENT

(Prayer: Appeal Suit filed under Section 96 of CPC to set aside the judgment and decree dated 31.07.2017 in O.S.No.36 of 2010 on the file of the I Additional District Judge, Salem.)

1. The plaintiffs in O.S.No.36 of 2010 on the file of the I Additional District Court, Salem, are the appellants herein, aggrieved by the judgment and decree dated 31.07.2017, whereby their suit, seeking partition and separate possession of the suit mentioned properties, was dismissed.

2. O.S.No.36 of 2010 had been filed by the plaintiffs / appellants herein, widow and two sons of late V.Rathinam, seeking partition and separate possession of 6/10th share of Item Nos.1 and 2 of the suit properties and 1/4th share in Item No.3 of the suit property and to put them in possession and for consequential relief of injunction and for costs.

The pleadings in O.S.No.36 of 2010 (I Additional District Court, Salem):-

3. In the plaint, it had been stated that the 1st plaintiff was the daughter-in-law of the 1st defendant. The 2nd to 4th defendants were the daughters of the 1st defendant. The 5th defendant was the daughter of the 1st wife of the father-in-law of the 1st plaintiff. The 6th to 8th defendants are third parties.

4. It had been stated that the properties described in the schedule, originally belonged to Ponnusami Gounder who had one son Marimuthu. Marimuthu had three sons, M.Venugopal, M.Ramamoorthi and M.Ranganathan. Ponnusami Gounder died intestate and Marimuthu succeeded to his properties. Thereafter, Marimuthu and his three sons divided the entire properties into four equal shares by a registered partition deed dated 26.07.1961.

5. The property mentioned as B Schedule in the partition deed was allotted to M.Venugopal, the husband of the 1st defendant and father of 2nd to 5th defendants and also the father of Rathinam / husband of the 1st plaintiff. The properties which had been allotted to M.Venugopal consisted of 7.77 acres of land in S.No.22/1 and 5.59 acres of punjai land in S.No.36/2 and 3.89 acres of punjai land in S.No.44/3 situated at Kottamettupatti Village, Omalur Taluk, Salem District. M.Venugopal, sold all the properties more than thirty years prior to the institution of the suit, but retained an extent of 0.39 cents of land in S.No.44/3. It was stated that the 5th defendant, Krishnaveni was the daughter of the 1st wife of M.Venugopal. Later, M.Venugopal married the 1st defendant and through her had one male son and three daughters. The son was the husband of the 1st plaintiff and the three daughters are the 2nd to 4th defendants.

6. It had been stated in the plaint that since the 1st defendant was the 2nd wife of Venugopal, she cannot claim any right in the ancestral or in the joint family property. It was also stated that M.Venugopal died intestate on 22.12.1997. It was claimed that the ancestral property namely, Item No.1 to the plaint schedule had devolved equally to M.Venugopal and Rathinam, the husband of the 1st plaintiff. Due to the death of the M.Venugopal, his 1/5th share further devolved to his son and to the 2nd - 5th defendants. It was under those circumstances that the plaintiffs claimed 6/10th share in the 1st Item of suit property. It was stated that the 6th defendant had paid an advance for purchase of the Item No.I of the property. It had been stated that subsequently, out of the 39 cents, 9 cents had been sold and as on the date of the plaint was only 30 cents was available. It was also stated that the husband of the 1st plaintiff had constructed a building from his own income. The plaintiffs had demanded partition and separate possession of the suit schedule properties, but since the defendants refused, the plaintiffs had to file the suit seeking the reliefs as stated.

7. The 2nd defendant had filed a written statement. It was adopted by the 1st, 3rd, 4th and 5th defendants.

8. In the written statement, it had been stated that M.Venugopal had already partitioned the suit property into two equal shares by an oral p