The plaintiff's failure to disclose previous litigation, non-joinder of necessary party, and the existence of a Will bequeathing the property to another party led to the dismissal of the suit for partition.

JUDGMENT

(Prayer: Appeal Suit is filed under Section 96 r/w Order 41 Rule 1 of the Civil Procedure Code against the Judgment and Decree passed in O.S.No.62 of 2008 dated 30.06.2011 on the file of the Additional District Judge, Fast Track Court No.1, Poonamallee.)

1. The plaintiff, in O.S.No.62 of 2008, having suffered a decree before the trial court, has come forward with this appeal.

2. The plaintiff has filed the suit for partition. According to the plaintiff, his father Balu Naicker and the 1st defendant namely A.Punniakotti are brothers. It is stated that the plaintiff's father and the 1st defendant have purchased the suit property jointly by means of a registered sale deed dated 15.10.1956. Therefore, his father is entitled to half share in the suit property and another half share belongs to the 1st defendant. However, the 1st defendant, inspite of demands made by the plaintiff, has refused to part with half share in the suit property. Even otherwise on 23.12.2005, the mother of the plaintiff by name Saradha had executed a settlement deed in favour of the plaintiff, by virtue of which the plaintiff is entitled to half share belonged to his father and for the remaining half share, the present suit is filed. It is stated that his sister Prabha had already orally relinquished her share in the suit property and therefore, there is no impediment for the plaintiff to get a share in the suit property. As the 1st defendant failed and neglected to part with the share in the suit property, the plaintiff had sent a notice dated 24.11.2007 calling upon the 1st defendant to come for an amicable partition. Though the notice dated 24.11.2007 was received by the 1st defendant, he did not issue any reply notice. Therefore, the suit was filed.

3. On notice, the 1st defendant filed a Written Statement stating that the suit property was jointly purchased by plaintiff's father Balu Naicker, 1st defendant and their mother Kamatchi Ammal on 15.10.1956. Kamatchi Ammal died leaving behind the plaintiff's father Balu Naicker and the 1st defendant as legal heirs and therefore they both are equally entitled to 17 cents out of 35 cents of the property covered in the sale deed dated 15.10.1956. According to the 1st defendant, the father of the plaintiff by name Balu Naicker died as a Bachelor and therefore, the plaintiff's mother can at best be treated as concubine of Balu Naicker. While so, the plaintiff cannot, as a matter of right, seek for partition of the suit property. It was also stated that the mother of the plaintiff has no legal right to execute the settlement deed dated 23.12.2005 in favour of the plaintiff and it is a sham and nominal document. It was stated that the father of the plaintiff had already executed documents conveying the suit property in favour of the 3rd parties and therefore, the suit property is not available for partition. It is the definite defence of the 1st defendant that the plaintiff is a stranger as far as the suit property is concerned and therefore he prayed for dismissal of the suit.

4. Pending suit, the defendants 2 to 5 have impleaded themselves as parties by order passed in I.A.No.1441 of 2009. After impleadment, the 2nd defendant filed a Written Statement. According to the 2nd defendant, the father of the plaintiff had executed a registered Will dated 12.09.2001 in favour of her husband by name Krishnan. On the death of Balu Naicker, the Will came into force on 12.09.2001 and the husband of the 2nd defendant namely Krishnan has become the owner of the suit property. On the death of Krishnan, the defendants 2 to 5 who are his legal heirs, have become lawful owners of the suit property. In the Written Statement of the 2nd defendant, a reference was made to the suit in O.S.No.688 of 2005 filed by the plaintiff for a declaratory relief as against the husband of the 2nd defendant Krishnan and two others. In the suit, the plaintiff had sought for a declaration of the plaintiff's title and for consequential injunction. H