The main legal point established is that the suit for partition is maintainable despite the failure to prove an earlier oral partition in the manner known to law.

JUDGMENT

(PRAYER : This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree dated 21.03.2001 made in A.S.No. 32 of 1999 on the file of the Court of Principal District Judge, Vellore, confirming the Judgment and Decree dated 16.10.98 in O.S.No. 474 of 1991 on the file of the Court of Subordinate Judge, Ranipet.)

1. The defendant in O.S.No. 474 of 1991 on the file of the Sub Court at Ranipet, is the appellant herein. The first respondent had filed O.S.No. 474 of 1991 seeking partition and separate possession of one half share in the suit property. By Judgment dated 16.10.1998, the suit was decreed and a preliminary decree accordingly was granted.

2. The defendant therein / present appellant then filed A.S.No. 32 of 1999 before the Principal District Court at Vellore by Judgment dated 21.03.2001, the Appeal was dismissed confirming the Judgment and Decree of the trial Court.

3. Questioning such Judgment, the defendant has filed the present Appeal.

4. At the time of admission, the following substantial question of law had been framed:-

"Whether the suit for partition is maintainable in spite of the earlier oral partition dated 11.12.1990?".

5. Pending the Second Appeal, the respondent had died and her legal representative was brought on record as second respondent and thereafter, consequent to the death of the second respondent, the third to fifth respondents were brought on record.

6. Heard arguments advanced by Ms.K.Janani for Mr.N.S.Sivakumar, learned counsel for the respondent. Even though notice had been served on the contesting respondents 3 to 5, there is no appearance.

7. The respondent Maragathammal had filed O.S.No. 474 of 1991 seeking partition and separate possession of one half share in the suit property. The suit schedule property was a terraced house bearing Door No. 17, Kosa Street, Panapakkam Village, Arakonam Taluk, in S.No. 55/1 Panapakkam Village, Arakonam Taluk in Vellore District.

8. It was the case of the respondent/plaintiff that Chinnakuzhanthai Mudaliar had two sons, namely, Thangavelu and Kandasamy. The respondent/plaintiff and Kalyani Ammal were the daughters of Thangavelu. The appellant/defendant was the son of Kandhaswamy. It had been stated that there had been a partition between Thangavelu and Kandhaswamy with respect to the property at Door No. 17, Kosa Street, Panapakkam Village, Arakonam Taluk in the year 1951. The suit property had been allotted to Thangavelu. There was also a common pathway of 6 feet. It was stated that respective parties had taken possession on the respective shares. It was stated that Thangavelu died leaving behind the respondent/plaintiff and Kalyani Ammal were his legal representatives. Kandhaswamy also died. His legal representative was the appellant/defendant Sethuraman. Thereafter, by sale deed dated 04.03.1988, the appellant/defendant had purchased the one half share of Kalyani Ammal in the suit property. It was therefore claimed that the plaintiff was entitled to the other one half share and the defendant was entitled to the remaining one half share in the suit property. It was under those circumstances that the suit was filed seeking partition and separate possession.

9. In the written statement filed by the appellant, it had been stated that the old house Door No. 17, Kosa Street, Panapakkam Village was demolished and a new house was constructed in the year 1952. It was stated that Kandhaswamy and Thangavelu had divided the property by dividing both the ground floor and the first floor. It was also stated that the rooms were also equally divided. It was therefore stated that there was an earlier oral partition. Thereafter, the sister of the respondent, Kalyani Ammal had sold her share to the appellant by sale deed dated 04.03.1988. It was stated that there was a partition between the appellant and the respondent on 11.12.1990 and they had divided the property and are in enjoyment according to the said division of the property. I