JUDGMENT

The Civil Miscellaneous Appeal is directed against the Judgment and Decree passed in A.S.No.42 of 2020, dated 02.12.2021, on the file of the Subordinate Court, Aruppukkottai.

2. The gist of the plaint is as follows:

(a) Originally the suit property belonged to the plaintiff's grandfather Muthiah Kudumban. After the death of Muthiah Kudumban, the plaintiff's father – first defendant herein and his brothers Lakshmanan and Dhanushkodi had partitioned the property orally and in that oral partition, the suit property was allotted to the share of the first defendant. The first defendant had married the plaintiff's mother Packiam and their three male children had died in their young age. The plaintiff is the only remaining legal heir of the first defendant. The first defendant had left the plaintiff and her mother and was residing with one Parvathi, who is the wife of one Maruthu and her son Thayamuthu. As per the Hindu Succession Amendment Act, the plaintiff is entitled to get ½ share in the suit property. The plaintiff's husband is a Muslim and they had married on 25.03.1999. The second defendant is the friend of the first defendant. The plaintiff has sent a legal notice to the defendants. The defendants having received the same, have not sent any reply. The plaintiff has sent a legal notice dated 11.05.2004, demanding partition and allotment of her share. Since the defendants have been attempting to create fraudulent documents in respect of the suit property, the plaintiff was constrained to file the above suit for partition.

(b) Pending suit, the first defendant had died on 24.05.2004. The plaintiff and her mother – third defendant are the only legal heirs and as such, the plaintiff and her mother-third defendant are entitled to get equal shares in the share of the first defendant.

3. The defence taken by the defendants 2 and 4 is as follows:

The plaintiff has suppressed her religion in her long cause tile of the plaint. The plaintiff had married one Kumaraiyan and after the death of said Kumaraiyan, the plaintiff had married another Kumaraiyan , who belonged to Christian religion. After the death of the said Kumaraiyan, the plaintiff converted to Muslim religion and married one Haniffa and is now residing with him. Due to misunderstanding, the first defendant had divorced his first wife Packiam (the third defendant), a per the community custom and practice and on that basis, divorce document was executed on 09.06.1974. After the said divorce, the first defendant had married Parvathi and through her, he had a son Thayamuthu. The first defendant had executed a registered Will in favour of his second wife Parvathi in respect of the suit property. But after the birth of his son Thayamuthu, he executed a registered settlement dated 30.04.1990 in favour of his son Thayamuthu in respect of the suit property and subsequently, executed another settlement deed dated 19.03.1991 in favour of the said Thayamuthu in respect of the vacant site situated on the south of their house. The said Parvathi and his son Thayamuthu have executed a General Power of Attorney deed dated 22.09.2003 in favour of the second defendant and on the basis of the said Power of Attorney, the second defendant had executed a sale deed dated 08.10.2004 in favour of his wife Jothimani. Since the plaintiff had converted to Islam, the plaintiff is not entitled to claim any share in the property belonging to a Hindu family. Since the plaintiff got married in the year 1982 itself and the first defendant had settled the suit property in favour of his son Thayamuthu, the plaintiff is not entitled to claim partition. The suit is bad for non-joinder of the wife of the second defendant, who purchased the property.

4. The fifth defendant has filed a written statement stating that the fifth defendant had no connection whatever with the suit property and the claim of the plaintiff.

5. On the basis of the pleadings, the trial Court has framed the following issues:

1. Whether the pl