C O M M O N J U D G M E N T

The first respondent is the plaintiff. She filed a suit in O.S.No.169 of 2014 before the I Additional District Court, Madurai, against the appellants/defendants 1 to 10 and the respondents 2 to 10/defendants 11 to 19, for passing of preliminary decree for partition allotting 1/3rd share to the plaintiff in the suit property by metes and bounds and for costs.

2. The trial Court after trial, decreed the suit in part and a preliminary decree was passed allotting 1/12th share to the plaintiff in the suit property and given liberty to the plaintiff to take out final decree proceedings for actual division of the suit property. Challenging the said judgment and decree, the defendants 1 to 10 have filed the present appeal and the first respondent/plaintiff has filed the Cross Objection.

3 (i). The brief facts of the case are as follows:

The plaintiff is the daughter of Ramalingaier and Thulasiammal.

Apart from the plaintiff, they have one son viz., Krishnamurthi and one daughter Mahalakshmi. Both of them are no more. The first defendant is the wife of deceased Krishnamurthi and the defendants 2 to 7 are the sons and daughters of the deceased Krishnamurthi. The 8th defendant is the husband of the deceased Devika, who is the daughter of the first defendant. The 9th and 10th defendants are the sons of deceased daughter Mahalakshmi. The 16th defendant is the husband of one Vijayalakshmi, who is the daughter of Late Mahalakshmi and 17th to 19th defendants are the son and daughters of the deceased Vijayalakshmi.

3(ii). The suit property is the ancestral property and the same was allotted to Ramalingaier, as per the registered partition deed, dated 27.09.1950. Tmt. Thulasiammal predeceased Ramalingaier. Ramalingaier died intestate during 1988. After his demise, the suit property was jointly enjoyed in common by the plaintiff and the defendants. The plaintiff so many times requested to give her 1/3rd share. But, the defendants evaded from partition. Hence, the plaintiff has sent a legal notice on 16.06.2014, claiming her 1/3rd share. The defendants 11 to 15 sent their reply stating that they also have right in the suit property. Since the suit property is the undivided joint family property, the plaintiff is entitled to 1/3rd share. During the pendency of the suit, the 7th defendant died as a spinster and her mother the 1st defendant alone is her legal heir. Hence, the suit is filed for partition.

4. The written statement filed by the defendants 1, 2, 4, 5 and 7, which was adopted by the defendants 3, 6, 8 to 10, reads as follows:

The plaintiff is the daughter of Late Ramalingaier was admitted.

The suit property is the ancestral property of Late Ramalingaier. During partition on 27.09.1950, the 1st defendant's husband viz., Krishnamurthi alone was born. Therefore, Ramalingaier and Krishnamurthi alone become the absolute owners of the property. The plaintiff got married in the year 1955 and another daughter Mahalakshmi got married in the year 1948. The said Mahalakshmi died prior to 1973. Ramalingaier's wife Thulasiammal died on 24.06.1977. After the death of Thulasiammal, Ramalingaier gave 5 sovereigns of jewels and Rs.20,000/- cash to the plaintiff and the heirs of Mahalakshmi. Ramalingaier was in a sound and disposing state of mind executed a registered Will dated 22.02.1988 in respect of his undivided ½ share in the suit property and his other property in Dindigul. The plaintiff and all the defendants known the existence of the said Will and it was acted upon. The plaintiff and the defendants 11 to 19 never demanded partition. The defendants sent reply to the legal notice dated 16.06.2014 and the same was received by the plaintiff's counsel on 23.07.2014. The plaintiff had never been in possession of the suit property. Neither the plaintiff nor the defendants 11 to 19 have any share or right over the suit property. Hence, the suit is liable to be dismissed.

5. The written statement filed by the 12th defendant, which was