JUDGMENT

This Civil Suit has been filed for seeking the relief to pass a preliminary decree for the plaintiffs 10/18th share in the Suit Schedule property and to appoint an Advocate Commissioner to suggest a mode of division of the Suit Schedule Property for plaintiffs 10/18th share and make the plaintiffs in possession of a separate 10/18th share in the Suit Schedule property.

2. The brief averments of the plaint are as under:

The plaintiffs are husband and wife. Defendants 1 to 7 and the 2nd plaintiff are children of one Parameswari Ammal and Kalasami Nadar.

Defendants 8 to 10 are the wife and children of K.Jothi, who is the predeceased son of Parameswari Ammal. The suit property is a piece of land with an extent of 4157 sq.ft., comprised in Old survey No.1158, CC.No.1825, R.S.No.2730/1 (part), New R.S.No.2730/19 as per patta), Tondiarpet Village, Fort-Tondiarpet Taluk, together with a superstructure thereon, which is fully described in the schedule belonged to the 1st plaintiff and the mother of the 2nd plaintiff namely Parameswari Ammal. The lease hold rights in the land and the superstructure were jointly sold by the legal heirs of one A.S.Kanniappan Nadar in favour of the 1st plaintiff one Parameswari Ammal by virtue of a sale deed dated 08.01.1981. The recitals of the sale deed would show that the 1st plaintiff had paid the entire sale consideration and the 2nd plaintiff's mother who was not an earning member. The original owner of the site of the suit property sold their rights in the lands to the 1st plaintiff one Parameswari Ammal vide sale deed dated 07.01.1981. It was the 2nd plaintiff who had paid the entire sale consideration.

2.1. The 2nd plaintiff was working as an accountancy consultant and he has good reputation. He has also won a sum of Rs.1,00,000/-[ Rupees one lakh only] in a raffle conducted by the government. Since the said amount was spent for family expenses, he borrowed a sum of Rs.41,000/-[ Rupees forty one thousand only] from Nataraja Nadar by mortgaging the suit property by virtue of a mortgage deed dated 08.01.1981. As against the mortgaged property, the mortgagors do not have any right, title or interest over the suit property. The 2nd plaintiff has also availed hand loans for conducting marriages of his brothers. Since the hand loans got accumulated he availed another mortgage loan of Rs.30,000/-[ Rupees thirty thousand only] by virtue of a mortgage deed dated 15.07.1985. The said mortgage was executed by the plaintiffs along with the parents and brothers of the 2nd plaintiff.

2.2. The mortgage loan was duly discharged by the 2nd plaintiff on

16.02.1991. The son of Nataraja Nadar had executed a receipt dated 28.02.2017 in proof of discharge of the aforesaid mortgage loan. The father of the 2nd plaintiff namely Kalasami Nadar predeceased his wife Parameswari Ammal, on 30.01.1994 and the said Parameswari Ammal also died intestate on 17.11.2010. Subsequent to the death of Parameswari Ammal half of the suit property devolved upon her children, who are the 2nd plaintiff and the defendants 1 to 7 and the legal heirs [Defendants 8 to 10] of her predeceased son Jothi.

2.3. After the demise of the Parameswari Ammal, the 1st plaintiff who is the co-owner of the property was desirous of effecting a partition of the Suit Schedule property. The 2nd plaintiff is one of the legal heirs of Parameswari Ammal who is entitled to 1/9th share in the half share of the Suit Schedule property, but the defendants did not come forward to effect partition. Hence the plaintiffs have filed the suit for partition after effecting a pre litigation legal notice. Hence the preliminary decree should be passed for plaintiffs 10/18th share in the suit schedule property.

3. The written statement and counter claim filed by the defendants 1 to 5, 7 & 10 is in brief:

The suit property as shown in the plaint schedule is a joint family property of one Kalasami Nadar purchased out of the joint efforts and earnings of all the family members of the