JUDGMENT

Challenge in this second appeal is to the judgement and decree dated 27.09.2004 passed in Appeal Suit No.211 of 2002 by the Principal District judge, Madurai wherein the judgement and decree passed in O.S.No.990 of 1993 dated 21.06.2002 by the Principal Sub Judge Madurai are confirmed.

2. The Appellant have instituted the O.S.No. 990 of 1993 on the file of the trial court for the relief of partition of half share in the plaint schedule property.

3. Originally the O.S.No. 990 of 1993 was filed by one U.P.

Palusami Konar, since he was dead, his son Janakiraman was impleaded as legal heir.

4. In the plaint, it is averred that the suit property is the ancestral property of the plaintiff and defendant. The father of the plaintiff, out of the income of the ancestral property purchased the suit property on 1.06.1947 under the registered sale deed. Apart from this property there were several other properties left behind by the father of the plaintiff to be inherited by the plaintiff and his brother Muthuirula Konar. After death of the father of the plaintiff, the plaintiff and his brother Muthuirula Konar got the properties jointly and the said Muthuirula Konar being the elder brother managed all the properties. Subsequently, some of the properties are partitioned orally by the plaintiff and his elder brother and they obtained separate pattas for those properties and paying kist. In the suit property, the plaintiff and his elder brother Muthuirula Konar have equal shares which are not partitioned yet. The said Muthuirula Konar died during the year 1980 and after his death, the plaintiff came into join possession along with the defendants who are the widow and the daughters of deceased Muthuirula konar. The second defendant's daughter Mayilthai was given in marriage to the second son of the plaintiff namely Janakiraman. The plaintiff approached the defendants for amicable partition of the suit property. The defendants are lethargic in their attitude and are delaying the partition. Under the said circumstances the preset suit has been instituted by the plaintiff.

5. In the written statement filed on the side of the first defendant, the first defendant admitted about the relationship of the parties about the oral partition of some properties and about the join possession of suit property by the plaintiff and defendants. It is averred that the plaintiff never approached the defendants for partition. The first defendant’s husband had executed a will on 24.03.1975 in respect of D. Schedule property in favour of the first defendant with the right of enjoyment till her death and after that defendants 2 and 3 are entitled for the same. Item No.4 and 7 of the D schedule property are undivided properties of the plaintiff and the first defendant. Those two properties were mistakenly included in the will dated 24.03.1975. There is a clear recital that D2 and D3 are entitled to get possession of the property only after the death of the first defendant. Both the defendants 2 and 3 failed to look after the first defendant. Hence their relationship is not very cordial. Without the consent of the first defendant, the second and third defendants and daughters of second defendant have executed several sale deeds in respect of the properties mentioned in the will. When the relationship between the defendants were cordial and smooth the defendant’s son obtained the signature of the first defendant for transfer of patta. This defendant has not given any consent for the written statement filed by D2 and D3. The averments in the written statement filed by D2 and D3 that the first defendant has no right to the suit property is denied as false. This defendant came to know the encumbrances created by D2 and D3. This fact was known to the first defendant only during 1998. The defendants have no right to execute any sale deed while the first defendant is alive. Hence the first defendant also pressed for her 1/3 share in the suit property.

6. In the Written st