The court affirmed that mere allegations of illegitimacy do not negate the plaintiffs' rights to inheritance, and the defendants failed to prove their claims of oral partition and sale.

JUDGMENT :

R.Hemalatha, J.

The appellant is the first defendant in O.S.No.184/2009 on the file of the II Additional District Munsif Court, Bhavani. The Respondents/plaintiffs filed the suit for partition of the suit properties into four equal shares and to allot one such share to them.

2. For the sake of convenience, the parties are referred to as per their ranking in the Trial Court and at appropriate places, their rank in the present second appeal would also be indicated.

3. The case of the plaintiffs in a nutshell is as follows :

The suit properties originally belonged to one late Sengoda Gounder who had four sons by names Muthu Gounder, Arumugam, Chinna thambi and Emana Gounder and among them, Chinna thambi alone is alive and he has been shown as third defendant in the suit. Sengoda Gounder's wife died long back. The plaintiffs are the legal heirs of the deceased Muthu Gounder. The defendants 1 and 2 are the legal heirs of the deceased Arumugam, while the defendants 4 and 5 are the legal heirs of the third defendant. The sixth defendant is the legal heir of the deceased Emana Gounder. The plaintiffs have 1/4th share in the suit properties. Since the plaintiffs felt that they cannot enjoy the suit properties jointly with the defendants 1 and 2, they requested them (defendants 1 and 2) to partition the suit properties. However, the defendants 1 and 2 attempted to sell the suit properties to third parties and therefore the plaintiffs issued a legal notice, dated 27.12.2007 (Ex.A5) to the defendants calling upon them to divide the suit properties into four equal shares and to allot one such share to them. Subsequently, the plaintiffs came to understand that the defendants 1 and 2 had sold a portion of the suit properties in favour of the remaining defendants through two Registered Sale deeds, dated 13.07.1994 and 19.08.1996. Since the plaintiffs are not parties to the said sale, it would not bind them. Hence, the suit.

4. The defendants 3, 6, 8 to 16 and 18 remained absent and were set exparte. The suit was resisted by the defendants 1 and 2 on the following grounds:

i. All the allegations contained in the plaint are false.

ii. The plaintiffs do not have any share in the suit properties.

iii. Muthu Gounder married one Ayyammal and through her, he has a daughter by name Irusayi ammal.

iv. Muthu Gounder, during the subsistence of the first marriage, was living with the mother of the plaintiffs and therefore the plaintiffs, who are illegitimate children cannot claim any share in the suit properties.

v. After the death of Sengoda Gounder, Muthu Gounder, the father of the plaintiffs migrated to Veppanatham pudur village, Dharmapuri District.

vi. Thereafter the suit properties and the other properties were partitioned among Muthu Gounder and his brothers on 14.04.1970 in the presence of Panchayatdhars. Muthu Gounder thereafter sold his 1/4th share in the suit properties to his brother Arumuga Gounder orally. Thus the defendants are in possession and enjoyment of the entire suit properties. They have also prescribed title by way of adverse possession.

vii. Muthu Gounder has in fact been ousted from the suit properties.

5. On the basis of the above pleadings, the Trial Court framed necessary issues and the second plaintiff examined himself and one another witness and marked Ex.A1 to Ex.A26. The second defendant examined himself and two other witnesses and marked Ex.B1 to Ex.B58. Ex.X1 to X5 were also marked.

6. After full contest, the learned Trial Court Judge, vide his decree and judgment dated 28.02.2012, decreed the suit in favour of the plaintiffs on the following grounds:

i. Though the defendants 1 and 2 have contended that they are in exclusive possession of the suit properties, they have not adduced acceptable evidence to substantiate the same.

ii. In the Revenue records, Ex.A1, Ex.A2, Ex.A22 to Ex.A26, the name of Muthu Gounder also finds place.

iii.There is no clinching evidence to show that the defendants 1 and 2 are in exclusive possession o