JUDGMENT

The appellant / plaintiff has filed the suit in O.S.No.36 of 2008, seeking for partition to divide the suit properties into equal 5 shares and allot one such share to the plaintiff, wherein the respondents are the defendants.

2.The brief facts of the plaint are as follows:-

As per family partition dated 19.11.1968, items 1 to 19 had been allotted to the father of the plaintiff. Item 20 vacant land was allotted through family partition to one Seenivasa Naicker, who is the father of Rengasamy Naicker. After his death, as per family partition, Rengasamy Naicker got it and had constructed a house therein and lived therein. He died on 31.03.2004. Thereafter, the suit properties are in joint possession of the plaintiff and the defendants. The plaintiff's mother died in the year 2002. The defendants 1 to 3 are the brothers of the plaintiff and the 4th defendant is the sister of the plaintiff. In the suit properties, the plaintiff is entitled to 1/5th share and the defendants are also entitled to 1/5th share each. In the year January, 2007, the plaintiff asked the defendants 1 to 3 to partition her share. Since they have delayed it, the suit is filed for partition.

3.The brief facts of the written statement filed by the 1st defendant are as follows:-

This suit is filed in collusion with the 4th defendant on the one hand and with the brothers of the plaintiff arrayed on the other side. The plaintiff and the 4th defendant got married in the year 1973 and 1972. Therefore, they cannot be deemed coparceners. He admitted that items 1 to 19 were allotted to their father. On 31.03.2004 Rengasamy Naicker died. The plaintiff and the 4th defendant have illegally transferred patta in their names, regarding the properties of their mother R.Ponnammal. Since the plaintiff and the 4th defendant got married, 20th item, family house was allotted to the 1st defendant and he is in possession and paying house tax. During the life time of Rengasamy Naicker, he had sold certain items in the suit properties. The suit is bad for non-joinder of necessary parties and non-joint of properties.

4.The brief facts of the written statement filed by the defendants 2 and

3, are as follows:-

They admitted that there was a partition in the family between the male members on 19.11.1968, in which items 1 to 19 were allotted to the share of Rengasamy Naicker. The estate of Rengasamy Naikcer descended as per the provisions of law applicable to testamentary succession and not according to intestate succession, inasmuch as Rengasamy Naicker got the estate divided in 1968 itself with his coparcener. Thus, the mother of the plaintiff and other defendants died in the year 2001 and not in the year 2000 as stated in the plaint. As per partition, item 20, family house was allotted to the 1st defendant and he is in possession and paying house tax. The parties are not in joint possession. During the life time, Rengasamy Naicker sold items 6, 7, 9 and a portion of item 4 before executing the Will and items 12 to 17 after executing the will. In the will, Rengasamy Naicker has stated that the rest of the properties in the will shall absolutely go to the beneficiaries, namely, the defendants 2 and 3. Further, Rengasamy Naicker had received sale consideration for items 18 and 19 from the purchasers and the proposed purchasers are in absolute possession and enjoyment for more than 15 years. The properties are in the possession of the male members and they are paying kist in their names after the transfer of patta in their respective names.

5.Based on the above said pleadings and also the documents annexed with the pleadings, the trial Court framed the following issues:-

“1.Whether the plaintiff is valued the property correctly and liable to pay Court fee under Section 37(1) of the Tamil Nadu Court Fees and Suit Valuation Act ?

2.Whether the plaintiff is entitled to partition and separate possession of 1/5th share in the schedule property?

3.To what relief the plaintiff is entitled?

6.In order t