JUDGMENT

The 4th defendant who unsuccessfully challenged the judgment and decree in O.S.No.81 of 2011 of the Sub Court Mannargudi, before the Principal District Judge, Thiruvarur in A.S.No. 10 of 2018, is the appellant before this Court.

2. For the ease of understanding, the parties are referred in the same array as before the Sub Court, Mannargudi.

FACTS OF THE CASE:

3. The plaintiff has filed a suit for partition of her 1/4th share in the suit property. It is her case that the suit properties belonged to one, Ramaiyan who is the father of the plaintiff and the defendants 1 to 3. Ramaiyan died intestate in the year 1993 and a year later, his wife followed him. Therefore, the plaintiff and the defendants 1 to 3 who are the daughters, had inherited 1/4th share each in the properties.

The deceased Ramaiyan has no male heir.

4. The plaintiff would submit that after the marriage of the plaintiff and the defendants 1 and 3, they have left for their matrimonial home and the second defendant is residing at the old tiled house situated at North Street, Eda Melaiyur Village in the Survey Nos.281/11 B2, 281/14A, 281/14C and 281/14B and maintaining the suit properties.

5. The properties are in the joint possession and enjoyment of the plaintiff and the defendants 1 to 3. It appears that without the knowledge of the other co-sharers, the second defendant had executed some arrangement in favour of the fourth defendant. The fourth defendant, in turn, without obtaining permission from the plaintiff and the defendants, had demolished the old tiled house in the property and had left the same as a vacant site and she had also filed a caveat against the plaintiff and the defendants 1 to 3 at the District Munsif Court, Mannargudi.

6. The plaintiff would submit that they are the co-sharers in the property and the second defendant cannot alienate their share in the property to the fourth defendant without the consent of the other sharers. When questioned, the second defendant replied that only she had right in the property left by their father. On 28.10.2011, the plaintiff had formally requested for partition and it was refused by the second defendant and therefore, this suit in question.

7. The written statement had been filed by the third defendant which was adopted by the first defendant who has adopted the pleadings of the third defendant and sought for partition of their 1/4th share. The second defendant was set ex-parte. The fourth defendant had filed a written statement inter-alia denying the contention of the plaintiff and putting the plaintiff to strict proof of the contents.

8. It is the case of the fourth defendant that on 22.10.2009, the second defendant had executed a sale agreement in respect of the suit properties which she had obtained through oral partition in favour of the fourth defendant for a sum of Rs.3,12,000/- and advance of Rs.3,00,000/- was paid to the second defendant according to the agreement and the sale deed was to be executed by the second defendant on receiving the balance of sale consideration. She would contend that the present suit is a collusive one instituted for the purpose of avoiding execution of the sale deed in favour of the fourth defendant.

TRIAL COURT:

9. The trial Court had framed the following issues and additional issues which had been translated in the English language from the vernacular language.

“Issues:

1. Whether the Plaintiff is entitled to claim

1/4th share in the suit property?

2. To what other relief, the plaintiff is entitled to?

Additional Issues:

1.Whether item No.1,2 amd 3 properties are not joint properties?

2. Whether the Court fee paid is insufficient?

3. Whether the suit is not maintainable?

4. Whether the suit is bad or non-jointer of parties?”

10. The plaintiff had examined herself as P.W.1 and marked Ex.A1 to Ex.A10. On the side of the defendants, the defendant had examined herself as D.W.1 and no document was marked on their side. The fourth defendant had not entered the box.

11. Heard the learned cou