In the absence of partition or relinquishment, a co-parcener cannot be said to have lost their rights over ancestral properties.

JUDGMENT

(Prayer: Appeal Suit filed under Section 96 of the Code of Civil Procedure, against the judgment and decree passed in O.S.No.111 of 1989 dated 09.03.1994 on the file of the learned Subordinate Judge, Kumbakonam.)

1. The deceased sole appellant as a plaintiff filed a suit in O.S.No.111 of 1989 on the file of the learned Subordinate Judge, Kumbakonam, against the respondents/defendants for a preliminary decree for partition. After trial, the said suit was dismissed. Now, challenging the said judgment and decree passed by the trial Court, the plaintiff in the suit filed this appeal. Pending appeal, the sole appellant/plaintiff died and his legal representatives were brought on record as appellants 2 to 7.

2. Brief facts stated in the plaint are as follows:-

The suit properties are ancestral properties of the father of the plaintiff namely, Arunajadesam Pillai, who got those properties vide a registered partition deed dated 31.03.1932. He died in 1970 intestate leaving behind his son/plaintiff, daughter/Pattammal and another son/Ramanathan. The plaintiff's sister Pattammal died in 1982 leaving behind her daughter-in-law Padmavathi Ammal/2nd defendant, widow of her per-deceased son Rathinasabapathi who had one son Viruthachalam/3rd defendant and two daughters/defendants 4 and 5. The plaintiff and his brother Ramanthan are each entitled to 4/9 shares and his sister Pattammal entitled to 1/9 share. Elder brother Ramanathan died in 1988 as a bachelor and therefore, his share shall be equally devolved upon other heirs. The 1st defendant who is the grandson of the plaintiff's father's brother namely, Swaminathan Pillai, was allowed to occupy a portion of the house property situate at Thirupanandal by the plaintiff's father. But, lateron, he claimed as if he is entitled to all the properties of the plaintiff's father. Hence, the plaintiff issued a registered notice on 28.03.1989 to the 1st defendant and also the defendants 2 and 3 claiming separate possession and partition of the suit properties. The 1st defendant issued a reply notice dated 05.04.1989 claiming that as per the will dated 18.06.1986 executed by Ramanathan, he alone is entitled to the suit properties and Ramanathan alone had redeemed certain mortgage debts over the suit properties as such, he got the properties absolutely for himself. According to the plaintiff, mortgages were redeemed from and out of the joint family earning and as a Manager Ramanthan was only looking after the affairs of the joint family properties, as such he has no absolute right over the suit properties. The alleged will by Ramanathan was not executed in a sound and disposing state of mind. The plaintiff is in joint possession of the suit properties. The possession of the 1st defendant was only in the capacity as a cosharer representing the interest of Ramanathan. The deceased Rathinasabapathi had another wife namely, Subbalakshmi and children born through her who are defendants 6 to 15. According to the plaintiff, the 6th defendant is not the legally wedded wife of Rathinasabapathi. Defendants 12 to 15 are lessess in some of the suit properties. Hence, the plaintiff filed suit claiming 4/9 share in the suit properties.

3. Brief facts in the written statement filed by the 1st defendant are as follows:-

The suit properties are not ancestral properties. The plaintiff never claimed any right in any of the suit properties during the life time of A.Ramanathan. Under the partition deed dated 31.01.1932 between Arunajadesam Pillai and his brothers, Arunajagesdam Pillai got the first schedule property along with the debts provided under the said partition deed. The plaintiff never took steps to discharge the debts and only Ramanathan discharged the same and got exclusive possession of the suit properties for more than 12 years. Thus, the plaintiff lost his right by virtue of continuous and adverse possession of Ramanathan to the knowledge of the plaintiff and his sister Pattammal who have no right