J U D G M E N T

The plaintiffs, who laid a suit for partition in O.S.No.877 of 1990, for partitioning four items of properties, having lost it successively both before the trial Court and before the first appellate Court in A.S.No.27 of 2006, are the appellants herein. For narrative convenience, the parties would be referred to as per their rank before the trial Court.

Pleadings:

2.1 There is hardly any difference between the parties on the material facts on which the plaintiffs have found the cause for their action. They are as below:

 Certain Karupanna Gounder and Nallappa Gounder were brothers.

Their ancestors owned items 1 to 3 properties described in the plaint. These are agricultural lands. This apart there are other properties that these brothers owned, regarding which there was an oral partition between them. In this partition, suit item 4 property comprises of a house plus vacant site in which Karuppanna Gounder had ½ share.

 Karuppana Gounder was married to one Karupayee and they had five children, of whom three were their sons. The two daughters are the plaintiffs here.

 Both Karuppana Gounder and Karuppayee had died prior to the commencement of the Hindu Succession Act. This is an admitted fact. Consequent to their demise, the 4^th item of property and Karuppana Gounder's share in items 1 to 3 devolved on his three sons, namely, Muthusamy, Kumar and Palanisamy alias Palaniappan.

 On 12.09.1961 under Ext.A.1, Kumar sold his share in these 4 items of properties to his brother Palanisamy.

 Of the three brothers, Muthusamy pre-deceased Palanisamy.

Palanisamy also died without any direct lineal descendants as his issues, or in other words without any Class I heirs. And, since Muthusamy had died by then, the share of Palanisamy devolved equally on his two sisters, the plaintiffs herein as the latter's Class II heirs.

 Muthusamy's wife is the first defendant and their daughter is the second defendant. The defendants 3 to 5 are descendants of Nallappa Gounder, the other undivided branch pertaining to items 1 to 3.

2.2 The suit is laid for partition of plaintiffs' share after exchange of notices, and the specific shares of each of the plaintiffs in each of the items of the properties are detailed in paragraph 14 below.

3.1 The suit was contested only by the defendants 1 and 2. Nallappa Gounder's branch represented by the defendants 3 to 5 chose to remain ex- parte. In their written statement, defendants 1 and 2 took up two contentions: (a) that after the demise of Muthusamy Gounder, there was an oral family partition between the defendants on the one hand, and Palaniappa Gounder on the other hand, in which all the shares of Palaniappa Gounder in the suit properties came to be allotted to these defendants; (b) that there lies a plot measuring 1,417 sq.ft, a vacant site, adjacent to item No.4. This property was not included in the suit. This apart, there is yet another property comprised in S.No.600/2A. This was also not included and hence, the suit is bad for seeking partial partition.

3.2 The plaintiffs now filed a re-joinder in which they would plea and clarify that even though item 4 comprises of house on a site measuring 1,417 sq.ft, only 630 sq.ft is as shown in the plaint is available and the balance is not available. Turning to the other property in S.No.600/2A, this property is in the name of a third party and therefore, it is not available for partition too.

4.1 The dispute went to trial. By now both the plaintiffs had passed away and their legal representatives were impleaded as the plaintiffs 3 to 8 and one such heir, who did not join the other heirs of the plaintiffs came to be impleaded as 7^th defendant.

Approach of the Courts below:

4.2 During trial, the 6^th plaintiff examined himself as P.W.1. For the contesting defendants, the first defendant was examined as D.W.1. Both sides produced documentary evidence. While those produced by the plaintiffs were marked as Ext.A.1 to Ext.A7, and that which the defendants had produced