JUDGMENT

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For the sake of convenience, the parties are referred to as per their ranking before the trial Court.

2.The appellant is the third defendant. The first and second respondents are the plaintiffs. They have filed the suit in O.S.No.63 of

1996 on the file of the II Additional Sub Judge, Tirunelveli, for partition and separate possession. After trial, the trial Court decreed the suit and passed the preliminary decree. Challenging the said judgment and decree, the third defendant in the suit has filed the present appeal.

3.The averments made in the plaint, in brief, are as follows:-

(i) The plaintiffs and the defendants 1 and 2 and deceased Saraswathy Bai are the children of Late Kesavaram Bansilal and Late Lakshmi Bai. The said Saraswathy Bai was working as Staff Nurse in the Government Hospital and retired on 30.06.1987 as Nursing Superintendent at Government Hospital, Nagercoil. After retirement, she was living in her own house mentioned as item No.1 in the Ist schedule. Within a short period thereafter, she died on 19.02.1990. During her life time, she did not marry. She died intestate. She left behind the immovable properties mentioned in schedule I and movable and cash amounts mentioned in Schedule II. The plaintiffs and the defendants 1 and 2, who are the legal heirs, equally entitled to the schedule properties. The plaintiffs are entitled to 3/5th share in all the schedule properties. Besides the plaintiffs and the defendants 1 and 2, the deceased Saraswathy Bai had three sisters, who are the defendants

4 to 6 herein and their whereabouts were not known and unheard off till date to any of the plaintiffs or their relatives.

(ii) The first defendant and her family members went to the house of the deceased Saraswathy Bai immediately after her death and they took custody of all the second schedule movable properties and the documents of title deeds relating to the first schedule immovable properties. The plaintiffs are in joint possession with the defendants 1 and 2 over the plaint schedule properties. The plaintiffs demanded the defendants to have an amicable partition of their shares by metes and bounds for which the first defendant and her family members are evading under some pretext or other. Hence, the suit for partition and separate possession of the plaintiffs 2/5th share in the schedule mentioned properties by metes and bounds.

(iii) The third defendant has been claiming share in the estate of deceased Saraswathi Bai alleging that he had contact with the deceased till her death and that he had also parted with money for purchase of the 1st schedule properties by the said Saraswathy Bai. His claim for a share in any portion of the schedule properties is totally unfounded and illegal.

Hence, he has been added as a party in this suit. During the pendency of the suit, the third plaintiff and second defendant passed away and their respective heirs have been impleaded as defendants 7 and 8 and 9 to 11.

4.The averments made in the written statement filed by the third defendant, in brief, are as follows:-

(i) The suit for partition though not sustainable, without bringing all the sisters before the Court, is not maintainable and it is bad for non-joinder of necessary parties. It is false to state that Saraswathi Bai did not marry. She married one N.M.Menon, a clerk in the Special Investigation Branch in the Office of the Commissioner of Income Tax Department at Madras and she lived with him. The misunderstanding between them caused entrancement of the spouses and Saraswathi Bai got separated from her husband in the year 1965. Saraswathi Bai purchased a vacant site measuring 9.02 cents in NGO A colony from the Cooperative Building Society 0.1847, Jawahar Nagar, Tirunelveli-7. The plaintiffs and the defendants 1 and 2 did not know anything about her and they never joined her at any time. The relationship between this defendant matured into a bondage of inseparable, mutual love and this defendant moved to the house