Daughters entitled to coparcenary shares by birth post-2005 amendment; no ouster presumed without proof; limitation inapplicable to joint possession.

JUDGMENT :

G.R.Swaminathan J.

The plaintiffs in O.S.No.65 of 2014 on the file of the Additional District and Sessions Judge, Theni at Periyakulam are the appellants herein. The suit was one for partition. The suit was dismissed by the judgment and decree dated 05.09.2017. Aggrieved by the same, this first appeal has been filed.

2.The plaintiffs and the first defendant were born to one Venkidasamy Naidu. Defendants 2 to 4 are the children of the first defendant, Baluchamy. The 5^th defendant Kalaiselvi is the daughter of the third defendant. Defendants 6 to 13 are purchasers from defendants 1 to 4. The first defendant died during the pendency of the suit. Defendants 1 to 4 remained ex parte. Defendants 7, 11, 12 and 13 also remained ex parte before the Court below. Defendant 5 and 6 filed independent written statements controverting the suit claim. Defendants 8 to 10 filed joint written statements.

3.The case of the plaintiffs is as follows:

The suit properties belonged to one Pethusamy Naidu. Pethusamy Naidu had a son by name Venkidasamy Naidu. Both of them entered into a partition in the year 1949 under which the suit items were allotted to Venkidasamy Naidu. Venkidasamy Naidu died in 1958 and his wife Gnanambal died in 1983. Both of them died intestate. The plaintiffs and the first defendant were in joint possession and enjoyment of the suit properties. When the plaintiffs called upon the first defendant to partition and hand over their 2/3rd share in the suit properties, the first defendant declined. Subsequently, the plaintiffs came to know that some of the suit items had also been alienated. They issued a notice dated 13.06.2014 (Ex.A16) calling upon the first defendant to effect partition and hand over their 2/3^rd share in the suit properties. The fifth defendant, the granddaughter of the first defendant gave Ex.A18 reply dated 04.07.2014

4.Kalaiselvi (D5) took the stand that the suit properties were not allotted to Venkidasamy Naidu in the partition that took place in the year 1949. She traced her title independently from Pethusamy Naidu. Based on the rival pleadings, the Court below framed the following issues:

“1) Whether suit properties ancestrally belonged to plaintiffs and the first defendant?

2) Whether the plaintiff and the first defendant enjoyed the suit properties in common as joint family properties?

3) Whether the partition effeected between the defendants 1 to 4 and the settlement deeds, power deed, sale deed, sale agreements by the defendants 5 to 13 are shame? Whether, they will bind the plaintiffs?

4) Whether, the plaintiffs were aware about the encumbrance effected with respect to suit properties at that point of time?

5) Whether the suit is barred by limitation?

6) Whether the suit is bad for partitial partition?

7) Whether the plaintiffs are entitled to 2/3^rd share in the suit properties?

8) Whether the plaintiffs are entitled preliminary decree as prayed for?

9) Whether the plaintiffs are entitled to declaratory reliefs as prayed for?

10) Whether the plaintiffs are entitled to the relief of mandatory injunction as prayed for?

11) To what other reliefs the plaintiffs are entitled?”

5.The second plaintiff examined herself as PW.1. A relative, by name, Rengaramanujam was examined as PW.2. Exs.A1 to A18 were marked. The sixth defendant’s husband examined himself as DW.1. Exs.B1 to B17 were marked. After consideration of the evidence on record, the trial Court dismissed the suit by the judgment and decree dated 05.09.2017. Questioning the same, this appeal has been filed. 6.The learned counsel appearing for the appellant reiterated all the contentions set out in the grounds of appeal. He frankly and fairly conceded that the appellants make no claim in