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Judgment
S. Tamilvanan, J.—The appeal has been preferred against the judgment and decree dated 31.1.95 made In O.S. No. 213/1990 on the file
of the Subordinate Judge, Mayiladuthurai.
The suit has been filed, by the 1st respondent/plaintiff for partition and separate possession of his 1/4th share in the suit property, the first
appellant and the 2nd respondent are his sons, 2nd appellant is the married daughter and the 3rd appellant/4th defendant is the wife of the first
respondent. It is an admitted case that the suit properties are ancestral properties of the first respondent and his sons and daughter. The 3rd
appellant/4th defendant had claimed maintenance from her husband.
Before the Trial Court on the side of the 1st respondent/plaintiff himself was examined as P.W. 1. On the side of the appellants and the 2nd
respondent, the first appellant and the 3rd appellant were examined as DW1 and DM2 apart from other witnesses. On the side of the appellants
and the 2nd respondent Exs. B. 1 to B. 18 were marked.
Considering the facts and circumstances and the evidence available on record the Trial Court has granted preliminary decree for partition as
prayed for. Against which the appellants/D1, D3 and D4 have come forward with this appeal.
Mr. M. Sounthar, learned Counsel appearing for the appellants would contend that the preliminary decree is bad on the ground of partial
partition. The learned Counsel further contended that these are family debts and liabilities to be discharged and that the appellants had spent money
for the marriage of the second appellant.
Per contra, Mr. A. Muthulcamar, learned Counsel appearing for the 1st respondent would contend that the entire ancestral properties are being
enjoyed by the appellants and the 2nd respondent and the 1st respondent, a senior citizen, though he was the karta of �he family was driven of
out the house and starving without anything and to deprive his legitimate rights the appeal has been preferred by the appellants.
It is seen that the Trial Court has raised following issues.
(i) Whether the plaintiff/1st respondent is entitled to 1/4th share in the suit property?
(ii) Whether he is liable to pay any debts?
(iii) Whether he is liable to pay maintenance to the third appellant his wife?
(iv) Whether he is entitled to mesne profits?
(v) To what relief the plaintiff/1st respondent is entitled to?
Admittedly, no Issues were framed by the Court below regarding partial partition. Only the above said issues are framed by the Court below. It
is known to the appellants before the Court below what were the issues framed by the Trial Court. But, admittedly, it is not brought to the notice of
the Court below the issue regarding partial partition. further, it is seen from the impugned judgment of the Trial Court that the Court had discussed
In detail about the same and hence it is not a suit foe partial partition. Further, according the appellants, the first respondent has not given any
details or supporting documents, to show that it was a partial partition.
It has been admitted that the 1st respondent had allotted certain properties to the 3rd appellant his wife towards maintenance. It has been dearly
admitted that the suit property is the ancestral property of the 1st respondent and his sons the first appellant and the 2nd appellant. The 3rd
respondent is a third party.
The learned Counsel appearing for the first respondent would contend that after the admission of this appeal, stay was granted by the Court
and subsequently considering the merits this Court has passed an order directing the appellants to deposit Rs. 1 lakh as condition precedent. The
same order was not compiled with. Hence, as par order dated 29.3.2007 made la C.M.P. No. 131/2007 la A.S. No. 319/2006 the stay was
vacated and further directed the registry to sand batik the records in O.S. No. 213/1000 to the Trial Court, namely, Sub-Court, Mayiladuthurai.
Accordingly, the records ware sent to too Court below as per the abovesaid order.
It is not la dispute that subsequently the Trial Court has passed final decree pursuant to the preliminary decree passed la the said Court. From
the evidence of the appellant who was examined as D.W. 1 in the cross-examination it has been made clear that the first respondent/plaintiff la
entitled to 1/4th share la the salt property and that he was seat out from the house. Since 1988 the entire properties axe being enjoyed by the
appellants and the 2nd respondent and that the first respondent/plaintiff does not know anything about the income and expenditure. Though the first
respondent is the father of the 1st appellant. It was stated that be has no means and that ha was taking food from soma other persons sad that
doing the work as broker for selling cattle. It is seen from the records that the 1st respondent was aged about the 55 years while the ease erne filed
in the year 1990 and as such, he is a senior citizen aged about 72 years. In such circumstances, one way oar other in order to deprive the rights of
the 1st respondent/plaintiff, the appellants have raised various grounds which are not legally sustainable and it has to be construed only as depriving
the legitimate rights of the 1st respondent. I find no merits In the appeal.
Therefore, the appeal is dismissed with costs.