BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Date of Reserved 01/08/2024 Date of Pronounced 23/10/2024 CORAM The Hon'ble Mr.Justice G.ILANGOVAN SA(MD)Nos.211 and 212 of 2021 (1)SA(MD)No.211 of 2021:-

1.Anbu Sabari

2.Ala Mahendran (Azhakendran) : Appellants/

Respondents 1 and 2 Plaintiffs 1 and 2 Vs.

1.V.Veerappan

2.Tmt.Janaki

3.M.Muthukumar

4.Tmt.Podumponnu : Respondents

5.Saravanan : 5^th Respondent/

3rd Party/

LR of the 3rd Plaintiff PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure Code, to set aside the judgment and decree passed in AS No.150 of 2006, dated 27/02/2015 on the file of the Subordinate Judge (Melur Camp), Madurai, reversing the judgment and decree passed in OS No.676 of 2004, dated 13/04/2006 on the file of the District Munsif Court, Melur, Madurai For Appellants : Mr.Gomathi Sankar for M/s.J.Bala Meenakshi For R1 to R4 : Mr.R.Bala Krishnan For 5th Respondent : M/s.M.Maria Vinola (2)SA(MD)No.212 of 2021:-

1.Anbu Sabari

2.Ala Mahendran (Azhakendran) : Appellants/

Respondents 1 and 2 Plaintiffs 1 and 2 Vs.

1.M.Muthukumar

2.V.Veerappan

3.Tmt.Janaki

4.Tmt.Podumponnu : Respondents/1^st Appellant/

Respondents 1 to 3/

Defendants 1,2 and 3

5.Saravanan : 5^th Respondent/

3rd Party/

LR of the 3rd Plaintiff PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure Code, to set aside the judgment and decree passed in AS No.199 of 2006, dated 27/02/2015 on the file of the Subordinate Judge (Melur Camp), Madurai, reversing the judgment and decree passed in OS No.676 of 2004, dated 13/04/2006 on the file of the District Munsif Court, Melur, Madurai For Appellants : Mr.Gomathi Sankar for M/s.J.Bala Meenakshi For R1 to R4 : Mr.R.Bala Krishnan For 5th Respondent : M/s.M.Maria Vinola

COMMON JUDGMENT

SA(MD)No.211 of 2021 is filed against the judgment and decree passed in AS No.150 of 2006, dated 27/02/2015 by the Subordinate Judge (Melur Camp), Madurai, reversing the judgment and decree passed in OS No.676 of 2004, dated 13/04/2006 by the District Munsif Court, Melur, Madurai, whereas SA(MD)No.212 of 2021 has been filed against the judgment and decree passed in AS No.199 of 2006, dated 27/02/2015 by the Subordinate Judge (Melur Camp), Madurai, reversing the judgment and decree passed in OS No.676 of 2004, dated 13/04/2006 by the District Munsif Court, Melur, Madurai

2.The plaint averments in brief:-

The suit in O.S No.676 of 2004 was filed by one Anbusabari and others against the defendants seeking the relief of partition and separate possession of their 2/3^rd share in the suit property, mesne profits and for costs with the following averments:-

The third plaintiff is the wife of the first defendant namely Veerappan. To them, one Saravanan, Chitra Devi and the first plaintiff namely Anbusabari were born. The first defendant's elder daughter Chitra Devi was married one Dhararaj in 1990 as per the customary rites. The 2^nd plaintiff is the children born to them. Chitra Devi died two years prior to the plaint. Dharmaraj also expired. As per the Hindu Succession Act, the second plaintiff was the original legal heir of the Chita Devi and Dharmaraj. The first defendant was the Kartha of the joint family. But there was no partition between the plaintiffs 1 and 2 and the first defendant. Some of the properties were ancestral properties and some of the properties were purchased out of the joint family income by selling the third plaintiff's jewels purchased in the name of the first defendant. In October 2003, they were excluded from the joint possession. The first plaintiff returned only on 16/09/2004. As per the partition deed, on 18/09/2003, B schedule was allowed to Saravanan. In the share allowed to Saravanan, plaintiffs 1 and 2 did not claim any right and therefore, Saravanan is not a necessary party in the suit. Even though, the plaint A schedule was stated to be allotted to the first defendant, so far as the plaintiffs 1 and 2 are concerned, it is undivided property with the first defendant. In the partition, dated 11/09/20