The plaintiff is entitled to a decree for partition as the property was not ancestral but jointly purchased.

JUDGMENT

The unsuccessful first defendant in the suit is the appellant herein. The first respondent/plaintiff filed a suit in O.S.No.218 of 2017 for partition, seeking half share in the suit property, which was decreed. The appeal filed by the first defendant in A.S.No.8 of 2018 was also dismissed, confirming the judgment and decree passed by the Trial Court, Aggrieved by the concurrent findings of the courts below, the first defendant has come before this court by filing the second appeal.

2. According to the first respondent/plaintiff, the suit property was originally belonged to one Thiruvengada Naicker Vagaiyara and the same was purchased by Murugappa Naicker and his brother Pachaiyappa Naicker jointly under a registered sale deed dated 27.05.1981, which has been marked as Ex.A1. The defendants are sons of Pachaiyappa Naicker. The plaintiff purchased half share in the suit property from Murugappa Naicker under a registered sale deed dated 21.02.2007, which has been marked as Ex.A2. Thus, the plaintiff claims right over half share in the suit property. It is further stated by the plaintiff that the plaintiff and the defendants have been in joint possession of the property and inspite of demand for partition made by her, the defendants failed to accept to her request. Therefore, the plaintiff issued a legal notice to the defendants calling upon them to effect partition, however, there is no reply from them. In such circumstances, the plaintiff was constrained to file a suit for partition seeking half share in the suit property.

3. The appellant/1st defendant filed a written statement, denying the contention of the plaintiff that the suit property was jointly purchased by the Murugappa naicker and Pachaiyappa Naicker. According to the first defendant, the land in S.No.62/5 measuring to an extent of 22 cents was the ancestral property of the defendants’ father Pachaiyappa Naicker and his brother Murugappa Naicker and the said property was exchanged by them with the suit property in S.No.62/4 measuring to an extent of 0.16. cents in favour of Thiruvengada Naicker. Therefore, the suit property shall be treated as ancestral property. On these pleadings, the first defendant seeks for dismissal of the suit.

4. Before the Trial Court, on the side of the plaintiff, she was examined as PW1 and 8 documents were marked as Ex.A1 to Ex.A8. On the side of the defendants, the first defendant was examined as DW1 and 9 documents were marked as Ex.B1 to Ex.B9.

5. The Trial Court, on appreciation of oral and documentary evidence available on record, came to the conclusion that the suit property was not the ancestral property and it was jointly purchased by Murugappa Naicker and Pachaiyappa Naicker and therefore, the plaintiff is entitled to a decree for partition of her half share in the suit property. Aggrieved by the said judgment and decree, the first defendant preferred an appeal in A.S.No.8 of 2018 on the file of Principal District Cour No.II, Kanchipuram and the first appellate court, confirmed the findings of the Trial Court. Aggrieved by the concurrent findings of the courts below, the first defendant has come before this court.

6. The learned counsel for the appellant/ first defendant would submit that the suit properties are the ancestral properties and therefore, the plaintiff’s vendor Murugappa Naicker was not entitled to sell the ancestral property to the third party, without offering it to the other co-sharers.

7. It is seen from the typed set of papers that Ex.A1 is the sale deed executed by the original owner of the suit property, namely,Thiruvengada Naicker and his brothers in favour of Murugappa Naicker and Pachaiyappa Naicker. In the said sale deed, there is no reference about the exchange of ancestral property, as pleaded by the first defendant. Therefore,