Ownership and partition claims require evidence of property nature, with prior partitions affecting entitlement.

JUDGMENT

The unsuccessful plaintiff in a suit for partition and separate possession is the appellant. The plaint, in brief is as follows:

(1) PLEADINGS:

PLAINT :

(a) The plaintiff is the daughter of Appachi Gounder and Pavalakkal.

The plaintiff had a sibling, brother by name Manickam. The first defendant is the wife of said Manickam and the second defendant is the daughter of Manickam.

(b) According to the plaintiff, the grand father of the plaintiff viz., Palani Gounder had self acquired properties at Kalpavai Village and he died intestate leaving behind two sons viz., Appachi Gounder and Sengoda Gounder as his only legal heirs and after the demise of Palani Gounder, the said sons viz., Appachi Gounder and Sengoda Gounder have inherited the properties and they were in joint possession and enjoyment, without partition, each entitled to ½ share.

(c) Appachi Gounder died leaving behind his wife Pavalakkal, son Manickam and daughter Velayammal, who is the plaintiff in the suit, as his legal heirs. The plaintiff claims that after the demise of Appachi Gounder, the above three viz., Pavalakkal, Manickam and Velayammal inherited Appachi Gounder's ½ share and they were in joint possession and common enjoyment of the same along with Sengoda Gounder without any valid partition.

(d) It is the further case of the plaintiff that her brother Manicam left his home in June 1996 and was not heard for more than seven years and he has also been declared as dead in a civil suit and therefore, his legal heirs have been impleaded as defendants in the suit.

(e) The plaintiff is entitled to get 8/24 shares in the property which has been in joint possession and enjoyment of the family without any valid partition and in the first week of March 2020, the plaintiff demanded the defendants to come forward for an amicable partition. However, the defendants kept postponing the same and thereafter, the plaintiff came to understand that during the life time of her brother Manickam and his father's brother viz., Sengoda Gounder, on 19.12.1973, there was a registered partition deed with respect to Palani Gounder's properties. The plaintiff alleges that the said partition deed is not binding upon the plaintiff and she has therefore issued a Notice on 23.06.2020, to which, the defendants did not choose to reply. In such circumstances, the plaintiff has filed the suit for partition and separate possession.

(2) WRITTEN STATEMENT

The first defendant filed a written statement which was adopted by the second defendant. The said written statement, in brief, is as follows:-

The suit is not maintainable. The suit properties were self acquired properties of Palani Gounder and after demise of Palani Gounder, his sons, Appachi Gounder and Sengoda Gounder were in enjoyment of the properties. After the demise of Appachi Gounder, on 19.12.1973, the brother of the plaintiff viz., Manickam, who is the son of Appachi Gounder and brother of the plaintiff, entered into a Registered Partition Deed with Sengoda Gounder. The suit is bad for non-joinder of necessary parties, especially since the plaintiff chooses to ignore the partition deed dated 19.12.1973 and therefore it is contended by the defendants that the legal heirs of Sengoda Gounder were proper and necessary parties. Similarly, the properties that were allotted to Sengoda Gounder under the partition deed dated 19.12.1973 were also to be included in the partition suit and consequently the suit is also bad for partial partition.

(3) Based on the pleadings, the trial Court framed the following issues:-

i) Whether the plaintiff is entitled for the relief of partition?

ii) Whether the suit is bad for partial partition<

iii) Whether the suit is bad for non-joinder of nec