IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:21.02.2025 Coram:

THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR Appeal Suit No.93 of 2022 CMP.No.3309 of 2022

1.Rajambal (died)

W.o Late Manicka Udayar

2.Kanagarathinam S/o Late Manicka Udayar

3.Rajendran S/o Late Manicka Udayar

4.Sagunthala D/o Late Manicka Udayar

1 to 4 residing at Kenavalliyarkaadu (a) Chettikaadu, R.Puddhupalayam, Rasipuram Taluk, Namakkal. ..Appellant/Defendants (A1 died, memo dated 10.02.2025 (A1 died (A2 to A4 who were already)

on record are recorded as LR's of deceased A1 vide Order of Court dated 14.02.2025 made in A.S.No.93 of 2022)

/versus/

Dhanakkodi W/o late Kuzhandhaisamy, Periyakaadu, Rasipuram Taluk, Namakkal District. .. Respondent/Plaintiff Appeal Suit has been filed under Section 96 of C.P.C., praying to set aside the judgment and decree dated 04.10.2021 made in O.S.No.160 of

2016 on the file of the Additional District Court, Namakkal.

For Appellants :Mr.A.E.Ravichandran For Defendant :Mr.I.Abrar Mohammed Abdullah assisted by Mr.S.Saravana Kumar

JUDGMENT

Aggrieved over the judgment and decree of the trial Court made in O.S.No.160 of 2016 dated 04.10.2021, granting Preliminary Decree in favour of the plaintiff for 6/25 share, the present Appeal Suit came to be filed.

2. The parties are arrayed according to their ranking in the trial Court.

3. It is the case of the plaintiff is as follows:-

One Manicka Udayar had two wives. The plaintiff was born through the first wife. After the death of the first wife, the first defendant married the said Manicka Udayar. The defendants 2 to 4 born to the first defendant. According to the plaintiff, the suit properties is a separate family property and the same has been allotted to Manicka Udayar in a partition deed dated 23.09.1960 (Ex.A1). The said property is in joint possession and enjoyment of the plaintiff and the defendants. The plaintiff's father died intestate on 11.10.1960(Ex.B2). Therefore, the plaintiff is entitled to 1/5th share and the defendants are making an attempt to sell the property, while evading the allotment of the plaintiff's share. Hence, the suit has been filed.

4. The contention of the defendants 3 and 4 in the written statement is that the property belongs to the joint family. The joint family property was partitioned on 23.09.1960(Ex.A1) and in the said partition, 'C' schedule property was allotted to Manicka Udayar. Further, it is denied the allegation that the property is in joint possession. It is the contention of the defendants that, the property is ancestral property and allotted to the plaintiff's father in the partition deed dated 23.09.1960. The defendants 2 and 3,who are the brothers, are co-parceners and they are entitled to 1/3rd share each along with their father. As the father died on 11.10.1961, his 1/3 share will be distributed among all the legal heirs with the plaintiff being entitled to 1/15th share at that time. Thereafter, in order to meet out the family debts, construction costs, during the marriage of the plaintiff on 21.07.1969, a portion of the property including the plaintiff's share was sold to discharge the legal debt of the family. It is also the contention of the defendants that during the plaintiff's marriage in the year 1976, the plaintiff has received the amount and released her right to the 1/15 share of the property orally.

5. In the light of the above pleadings, the following Issues were framed by the trial Court for consideration:-

(1)Whether the plaintiff is entitled to in the Preliminary Decree 1/5 share?

(2)Whether the properties is a separate property of Manicka Udayar?

(3)Whether the property is the joint family property as stated by the defendants 1 to 4?

(4)Whether plaintiff is entitled to 1/5 share?

(5)Is it true that the plaintiff and the defendants 1,4 each are entitled to 1/15 share and defendants 2 and 3 each are entitled to 6/15 share?

(6)Is it true that the plaintiff relinquished her right orally in favour of the defendants?

(7)Whether Partition deed dated 01.11