An appellate court has the power under Order 41 Rule 33 of the Civil Procedure Code to mould relief and correct the quantum of shares in a partition suit to serve the ends of justice, even in the absence of a cross-appeal by the party involved.

JUDGMENT

1. This Second Appeal has been preferred as against the Decree and Judgment passed by the First Appellate Court in A.S.No.1 of 2014 on the file of learned Principal District Judge, Erode dated 21.07.2014. The respondent herein, being the plaintiff, filed the suit in O.S.No.17 of 2010 on the file of the learned Subordinate Judge, Gobichettipalayam for the relief of partition and the same was decreed. As against the said Judgment and Decree, the appellants, being defendants have preferred the First Appeal in A.S.No.1 of 2014 and the plaintiff also preferred A.S.No.3 of 2014. The First Appellate Court dismissed both the appeals. However, modified quantum of shares from 1/6 to 4/9. Aggrieved by the said decree and judgment, the appellants / defendants in A.S.No.1 of 2014 have preferred this Second Appeal.

2. For the sake of convenience and brevity, the parties are referred to as per their ranks before the trial court.

3. The brief averment of the plaint are as follows:-

(I) The plaintiff has filed the suit as against the defendants for the relief of partition and separate possession. The schedule Item Nos.1 and 2 of the properties belonged to the father of the plaintiff, namely, Samiyappan through Partition Deed dated 16.06.1964. The Item No.3 of the suit property was purchased by the said Samiyappan through Sale deed dated 02.05.1974 through the income derived from the Item Nos.1 and 2 of the suit properties. The Item No.4 was also purchased by the said Samiyappan through the income derived by the Item Nos.1 and 2 of the suit properties. The Item No.5 of the property belonged to the father of the plaintiff through Partition deed dated 02.05.1974 between the father of the plaintiff, viz., Samiyappan and his brother. The Item No.6 of the property also purchased by the father of the plaintiff through the income derived from the joint family properties on 21.06.1972.

(ii) All the properties were treated as joint family properties. The 1st defendant is the mother of the 2nd defendant and the 2nd defendant is the son of late Samiyappan, who died on 10.09.2006. Since the properties are ancestral properties, the plaintiff, being daughter of the said Samiyappan is entitled to share over the property. The plaintiff is entitled to 4/9th share over the property. While so, on 28.05.2009, the plaintiff sent a notice to the defendants and the defendants sent a reply dated 08.06.2009 with a false allegations that the deceased father of the plaintiff executed a Will dated 11.07.1997 and the said Will is not a genuine one. Therefore, the 1st defendant is entitled to 1/9th share and the plaintiff and the 2nd defendant each are entitled to 4/9th shares, therefore, filed the suit.

4. The brief averments of the Written Statement filed by the defendants are as follows:-

(I) The suit is false, frivolous, vexatious and not maintainable.

(ii) The relationship between the parties are admitted. The 1st defendant’s husband, namely, Samiyappan, died on 10.09.2006. While the 1st defendant’s husband was alive, he executed a Will dated 11.07.1997 bequeathing the properties in favour of the defendants. The 1st defendant was given life estate and thereafter, the 2nd defendant is entitled to the properties. The suit properties are not joint family properties and the plaintiff has no any right over the property. The plaintiff never been in joint possession with the defendants, therefore, the payment of court fee paid by the plaintiff is not correct.

(iii) The averments that the properties Schedule Item Nos.3 to 6 were purchased through the income derived from the joint family properties are false.