J U D G M E N T

This Appeal Suit has been preferred challenging the judgment and decree of the learned Fast Track Court (Additional District and Sessions Judge), Dindigul, dated 24.07.2006 made in O.S.No.312 of 2004.

2. The appellants are the defendants in the suit. The suit has been filed by the plaintiffs for the relief of partition.

3. According to the case of the plaintiffs as per the plaint, the suit property and other properties originally belonged to one Gurunathan Servai. He had two sons, namely, Karupanan @ Chinnakalai and Palanichamy. After the death of Gurunathan Servai, Karupanan @ Chinnakalai and Palanichamy partitioned the suit properties among themselves. The suit schedule properties are allotted to the share of Karupanan Servai. The said Karupanan Servai had two wives, namely, Periya Palaniammal, who is the 1st plaintiff and through her, he had four children, viz., who are the plaintiffs 2 to 5 in the suit. Thereafter, the said Karuppnnan Servai married Chinna Palaniammal as his second wife, who is the sister of the Periya Palaniammal, during the existence of the first marriage. The said Chinna Palaniammal is the 1st defendant and the defendants 2 to 5 are the children born through her. The said Karuppannan Servai died in the year 1989. The second wife is not entitled to any share in the partition of the suit property, since the first marriage with the said Periya Palaniyammal was not dissolved and is in existence during the second marriage. The suit properties were jointly enjoyed by the plaintiffs and the defendants 2 to 5, hence, they are entitled to partition in the suit property. At this juncture, the plaintiffs filed a suit for partition against the defendants before the Fast Track Court, Dindigul in O.S.No.256 of 2004. The Court below has ordered to settle the matter out of court, as the first defendant was not added as a party to the lis as per the written statement made on 29.10.2004. Since the parties are not ready to settle the matter out of the Court, the present suit has been filed.

4. The defendants resisted the suit by filing a written statement stating that the averments contained in the plaint are all false. Further, it is stated that the first plaintiff is the second wife of the said Karuppannan Servai. The marriage between Karupannan Servai and first plaintiff and also Karuppannan Servai and Chinna Palaniammal was performed jointly. Further, after accepting the Chinna Palaniammal as the first wife, then only the first plaintiff was married for the second time as second wife. The details about the children are true and the children are born when they are in joint family system. The male heir of the said Karuppanan, the second defendant had maintained the suit properties. The second defendant only performed the marriage of the plaintiffs 2 to 4 and defendants 3 to 5. He has only repaid the loan amount of the family and spent a sum of Rs.1,00,000/- towards marriage and other expenses. The debts of Palanichammy, who is the husband of third plaintiff, to the tune of Rs.80,000/- while he was doing in the agriculture, was repaid by the first defendant. The suit was filed with false allegations. Further, a sum of Rs.75,000/- was spent for digging a well and while partitioned the suit property on 21.04.1982, the plaintiffs have agreed to pay a sum of Rs.25,000/- towards the debt amount to the first defendant. However, they have refused to pay the same after partition and agreed to enjoy the suit property as partitioned by them. As per the partition the first defendant had obtained patta and enjoyed the property allotted to him. The suit was filed on the ill-advise of third parties and as such, the plaintiffs have no right over the suit property and more over the plaint was bad for misjointer of unnecessary parties and the suit is liable to be dismissed.

5. The plaintiffs have filed a rejoinder to the written statement which reads as follows:- It is not true to state that the first plaintiff was married a