JUDGMENT

The defendants in O.S.No.290 of 1995 on the file of the Principal District Munsif Court, Ulundurpet, are the appellants herein.

2.O.S.No.290 of 1995 had been filed by Mavirusappa Padayachi against three defendants, Kuppa Padayachi, Pitchaikara Padayachi and Amirthammal seeking a judgment and preliminary decree to allot 1/3rd share in 1st item of suit property and 1/2 share in 2nd item of suit property and also for mesne profits and for costs. By judgment dated 20.11.1996, the suit was dismissed. Even during the pendency of the suit, the plaintiff died and his legal representatives were brought on record as 2nd to 6th plaintiffs. The 3rd defendant had also died without leaving any legal representative. The plaintiffs then filed A.S.No.29 of 1997 which came up for consideration on 11.04.2001 before the II Additional Sub Court, Villupuram and on re- appreciation of the evidence, the appeal suit was allowed with costs and the judgment and decree of the Trial Court dismissing the suit was set aside.

3.The defendants then filed the present Second Appeal. During the pendency of the Second Appeal, the 2nd defendant / 2nd appellant died and his legal representatives were brought on record as 3rd to 5th appellants. The 2nd respondent also died and his legal representatives were brought on record as 6th to 10th respondents.

4.The Second Appeal had been admitted on the following substantial questions of law:

“i).Whether the first appellate Court was right in not properly calculating the share in accordance with the Hindu Succession Act?

ii).Whether the first appellate Court was right in decreeing the suit for partition?”

O.S.No.290 of 1995 (Principal District Munsif Court, Ulundurpet):-

5.The suit was filed for partition and separate possession of 1/3rd share in the 1st item of suit property and 1/2 share in the 2nd item of suit property. The 1st item of suit property measured 0.12 cents in R.S.No.53/40 in Elai Village, Elavanagur, Kallakurichi. The 2nd item of suit property was in Natham R.S.No.106 measuring 3 ¾ cents out of the larger area of 4.26 cents in the aforementioned village, Kallakurichi District.

6.In the plaint, it had been stated that the suit properties belonged to Soniappa Padayachi. The 3rd defendant, Amirthammal who died pending the suit was his 1st wife. They had a son called Periyathambi. After the birth of the son, the 3rd defendant went back to her mother's house. The son died a bachelor. It had been stated that thereafter, Soniappa Padayachi, after obtaining the consent of the 3rd defendant had married Nadupillai, which marriage is said to have taken place nearly 30 years prior to the institution of the suit. They lived together as husband and wife. They had a daughter Jayakodi. She was married to one Kaliyan. It was stated in the plaint that Jayakodi was a legitimate daughter though Nadupillai was the second wife of Soniappa Padayachi.

7.Soniappa Padayachi had gifted certain other properties by gift deed dated 11.05.1981 to Jayakodi. She also accepted the gift. The gift settlement deed was said to be an irrevocable document. It was stated that Soniappa Padayachi was alone entitled to the suit schedule properties. It was stated that 4 cents in the 1st item of suit schedule property and 1/2 share in the 2nd item of suit property were allotted to Jayakodi. Jayakodi sold the said property by sale deed dated 03.07.1981 to Rajamanickam, who sold them to Kalia Padayachi on 19.06.1986. Kalia Padayachi sold the property by sale deed dated 07.11.1988 to the original plaintiff who therefore claimed 4 cents in item No.1 property and 1 7/8 cents in item No.2 property.

8.It was stated that after the purchase of the property by the plaintiff, the defendants tried to interfere with his peaceful possession. It was claimed that the 2nd defendant had purchased the 1st and 2nd items of suit property from the 3rd defendant by sale deed dated 07.06.1989. The defendants then tried to interfere with peaceful possession. There were notices