S.A.No.59 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 09.10.2023

CORAM

THE HONOURABLE Ms. JUSTICE P.T. ASHA

S.A.No.59 of 2021

and

C.M.P.No.1405 of 2021

Vimala

... Appellant

Vs.

1.Suriya Gandhi,

2.Vedavalli,

3.Sundarambal,

4.Vijayarani.

... Respondents

PRAYER: Second Appeal filed under section 100 of the Civil

Procedure Code to set aside the judgement and decree passed by the

learned Principal District Judge, Thiruvarur in A.S.No.10 of 2018

dated 21.12.2019 confirming the Judgement and Decree passed by the

learned Sub Judge, Mannargudi in O.S.No.81 of 2011, dated

21.03.2016.

For Appellant

: Mr. S.Parthasarathy

For Respondents

R1,R2 & R4 : M/s. M.Sujithra

for M/s.P.T.Ramadevi

R3

: No appearance

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S.A.No.59 of 2021

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.

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S.A.No.59 of 2021

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.

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S.A.No.59 of 2021

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 1/4^th

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

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S.A.No.59 of 2021

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