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2022 DIGILAW 971 (MAD)

Vadivelan v. Gandhi

2022-04-20

S.S.SUNDAR

body2022
JUDGMENT (Prayer: Second Appeal filed under Section 100 of CPC against the judgment and decree dated 17.10.2016 made in AS.No.29/2011 on the file of the learned IV Additional District Judge, Erode District at Erode confirming the judgment and decree dated 24.08.2009 made in OS.No.252/2003 on the file of the learned Subordinate Judge, Bhavani.) (1) The unsuccessful plaintiffs in the suit in OS.No.252/2003 on the file of the learned Subordinate Judge, Bhavani, are the appellants in the above Second Appeal. (2) The plaintiffs filed the suit in OS.No.252/2003 before the Sub Court, Bhavani, for partition of 3/4th share in all the suit properties. The suit properties are agricultural lands described as six different portions with reference to various extents and specific boundaries, measuring 2.17.0 Hectares out of the total extent of 4.36.5 Hectares in RS.No.107 of Patlur Village, Bhavani Taluk, Erode District. The suit properties also include a well apart from a small house in the third item of the suit properties. (3) The relationship between the parties are not in dispute. Plaintiffs are the two sons and daughter of the 1st defendant. Plaintiffs 1 and 2 are the son and daughter of the 1st defendant born through his first wife by name Jeeva and the 3rd plaintiff is the minor son of the 1st defendant born through the 3rd wife of the 1st defendant, by name Vijaya. The 2nd defendant is the brother's wife of the 1st defendant. (4) The case of the plaintiffs in the plaint is that the ancestral properties of the 1st defendant and his three brothers were partitioned under a registered Partition Deed dated 10.09.1975. An extent of 3.66 acres in S.No.555 and another extent of 1.23 acres in S.No.560 with a well and motor pumpset in Volakkadam Village was allotted to the 1st defendant. It is stated that the 1st defendant, for the purpose of purchasing other properties and for repaying the loan obtained by him from the Cooperative Bank, the properties allotted to the 1st defendant in the family partition was sold in favour of one Palanisamy under two Sale Deeds in the year 1985. It is stated that the 1st defendant, for the purpose of purchasing other properties and for repaying the loan obtained by him from the Cooperative Bank, the properties allotted to the 1st defendant in the family partition was sold in favour of one Palanisamy under two Sale Deeds in the year 1985. It is the further case of the plaintiffs that the sale consideration obtained by the 1st defendant was more than the actual amount received by him under the documents and therefore, one of the documents was impounded for under valuation and an enquiry under Section 47A of the Indian Stamp Act is still pending. It is also stated that the 1st defendant's brother was also allotted undivided 5.40 acres and were enjoyed in common with reference to the undivided share of the respective parties. The 1st defendant after selling the ancestral properties which were allotted to him in the previous partition under two different documents and with the surplus money he had from the sale of the ancestral properties, purchased the properties allotted to his brother by two different Sale Deeds dated 30.09.1986 and 17.09.1987 respectively. Since the properties are not divided by metes and bounds, the 1st defendant entered into a partition with his junior paternal uncle by name Chinnusamy and the suit properties were allotted to the 1st defendant in the Partition Deed dated 23.01.1990. Since the suit properties were acquired by the 1st defendant by selling the ancestral properties for the benefits of plaintiffs and the 1st defendant, it is stated that the suit properties are joint family properties. Plaintiffs 1 and 2 along with the 1st defendant, executed a Mortgage Deed for a sum of Rs.1,50,000/- and constructed a house out of the amount. Stating that the plaintiffs and the 1st defendant are in joint enjoyment and that the 1st defendant was addicted to drinking and involved in gambling and other immoral activities including development of affairs with several women and that the 1st defendant refused to agree for an amicable partition giving 3/4th share in the suit properties, the suit for partition of 3/4th share is filed. (5) The 1st defendant did not file any written statement and remained exparte throughout. (6) However, the 2nd defendant in the suit filed a written statement denying all the allegations made in the plaint. (5) The 1st defendant did not file any written statement and remained exparte throughout. (6) However, the 2nd defendant in the suit filed a written statement denying all the allegations made in the plaint. The 2nd defendant stated that the suit properties belonged to the 1st defendant and he was enjoying the same as the absolute owner. It is further stated that the 1st defendant entered into an Agreement of Sale with the 2nd defendant agreeing to sell the suit properties for a sum of Rs.2,00,000/- and received an advance of Rs.1.80 lakhs on the date of sale agreement. It is further stated that the 2nd defendant was forced to file a suit for specific performance against the 1st defendant in OS.No.23/1997 on the file of the Sub Court, Bhavani by depositing the balance of sale consideration. It is further stated that the suit for specific performance was decreed in favour of the 2nd defendant and that the 2nd defendant obtained a Sale Deed by execution of the decree for specific performance. It was also stated in the written statement that possession of the property was delivered to the 2nd defendant through Court in the execution proceedings in EP.No.5/2003. Stating that the 2nd defendant alone was in possession of the property and that the property was delivered to her on 16.10.2003 by the Execution Court, it is contended that the plaintiffs have filed the suit in collusion with the 1st defendant just to harass the 2nd defendant and to defeat her right under the decree. It is also stated by the 2nd defendant that the suit for partition without a prayer for declaration of title and without challenging the Sale Deed executed in favour of the 2nd defendant, is not maintainable. (7) Before the Trial Court, the plaintiffs examined PW1 to PW3 and marked Exs.A1 to A11. The 2nd defendant examined herself as DW1 and marked Exs.B1 to B4. (8) The Trial Court dismissed the suit holding that the plaintiffs have failed to prove that the 1st defendant acquired the suit properties out of the sale proceeds by selling the joint family / ancestral properties of the family since the plaintiffs were minors at the time when the ancestral properties were sold. (8) The Trial Court dismissed the suit holding that the plaintiffs have failed to prove that the 1st defendant acquired the suit properties out of the sale proceeds by selling the joint family / ancestral properties of the family since the plaintiffs were minors at the time when the ancestral properties were sold. The Trial Court further observed that the plaintiffs are not competent to speak about the case pleaded by them that the suit properties were acquired by the 1st defendant out of the sale proceeds obtained by him by selling the joint family properties. The Trial Court further held that the plaintiffs have failed to examine the 1st defendant even though the plaintiffs and the 1st defendant are living in the same house and that the non examination of the 1st defendant as a witness on the side of the plaintiffs is fatal. After holding that the suit properties are the separate and self acquired properties of the 1st defendant, the Trial Court further held that the judgment and decree in the suit filed by the 2nd defendant for specific performance and the possession of the 2nd defendant by executing the decree is binding on the plaintiffs and hence, they are not entitled to seek partition. (9) Aggrieved by the judgment and decree of the Trial Court, the plaintiffs preferred an appeal in AS.No.29/2011 on the file of the learned IV Additional District Judge, Erode at Bhavani. (10) The Lower Appellate Court also confirmed the findings of the Trial Court and held that the suit properties are the absolute properties of the 1st defendant and that the appellants and the 1st defendant are estopped from claiming that the suit properties were purchased from and out of the income derived through the ancestral properties. The Lower Appellate Court also held that unless the contrary is proved, there is a presumption that the property is the self acquired property of the person in whose name the Sale Deed stands. Aggrieved by the dismissal of AS.No.29/2011 by the learned IV Additional District Judge, Erode at Bhavani, confirming the judgment and decree made in OS.No.252/2003 by the Trial Court, the appellants have preferred the present Second Appeal. Though the appeal is yet to be admitted by framing questions of law, notice before admission was given to the respondent. Aggrieved by the dismissal of AS.No.29/2011 by the learned IV Additional District Judge, Erode at Bhavani, confirming the judgment and decree made in OS.No.252/2003 by the Trial Court, the appellants have preferred the present Second Appeal. Though the appeal is yet to be admitted by framing questions of law, notice before admission was given to the respondent. Before me, both counsels argued the Second Appeal and the learned Senior counsel appearing on behalf of respondent did not raise any objection for hearing the Second Appeal without framing any question of law. (11) The appellants have raised the following substantial questions of law in the Memorandum of Grounds of the Second Appeal:- (a) Whether the Courts below erred in treating the suit property as the separate property of the 1st defendant especially when the recitals found in Ex.a4 and Ex.A11, quantum of sale consideration mentioned therein and paid under Ex.A5 and Ex.A6, relationship between the 1st defendant and his vendors etc., would lend support to the claim of the plaintiffs that it should be treated as the ancestral in nature? (b) When the suit property was purchased in the name of the 1st defendant who was the Kartha, have not the Courts below erred in disbelieving the legal presumption as to the nature of the acquisition as the ancestral property? (c) Whether the Exhibits B1, B2 and B4 relating to OS.No.23/1997 filed by the 2nd defendant against the 1st defendant would bind the share of the plaintiffs, when their father/1st defendant have had no legal right to deal with the share of the plaintiffs (12) The learned counsel for the appellants referring to the pleadings and the findings of the Courts below submitted that both the Courts have concurrently failed to appreciate the recitals found in the documents in Exs.A4 and A11 and how the the properties were purchased under Exs.A5 and A6. Learned counsel, referring to the Genealogy tree submitted that the Courts below have failed to appreciate as to how the suit properties were dealt with under different documents among the members of the family of the 1st defendant. The learned counsel also referred to the documents in support of his contentions and submitted that the findings of the Courts below are not only perverse but also without considering the recitals of the documents and the evidence. The learned counsel also referred to the documents in support of his contentions and submitted that the findings of the Courts below are not only perverse but also without considering the recitals of the documents and the evidence. The learned counsel for the appellants further relied upon a few judgments of the Hon'ble Supreme Court to support the proposition that the 1st defendant was the Kartha of the family and hence, there is a legal presumption as to the character of suit properties as ancestral properties and that the Courts below have not applied the settled principle of law before holding that the properties acquired by the 1st defendant under Exs.A5 and A6 are the separate properties of the 1st defendant. The learned counsel for the appellants, after referring to the documents in Exs.B1, B2 and B4 submitted that the suit in OS.No.23/1997 filed by the 2nd defendant against the 1st defendant for specific performance is not binding on the appellants/plaintiffs' share as their father/1st defendant had no right to deal with the share of the appellants/plaintiffs. (13) Per contra, Mr.T.Murugamanickam, learned Senior counsel assisted by M/s.Zeenath Begum, learned counsel for the 2nd respondent however submitted that the findings of the Courts below are perfectly valid and this Court sitting in Second Appeal, cannot reappreciate the entire evidence which were considered by the Courts below elaborately. Learned Senior counsel appearing for the 2nd respondent, referring to the Partition Deed under Ex.A3 and the subsequent alienations, submitted that the appellants have miserably failed to prove that the sale proceeds received by the 1st defendant by sale of joint family properties under Exs.A11 and A4, were in fact utilised for purchasing the properties under Exs.A5 and A6. Learned Senior counsel also submitted that the present suit is filed by the appellants only when the delivery was taken by the 2nd defendant/2nd respondent herein by executing the decree for specific performance in EP.No.5/2003 and that the appellants and the 1st defendant have colluded with each other to cheat the 2nd respondent and the suit itself is filed only at the instigation of the 1st defendant/1st respondent herein. (14) This Court has considered the rival submissions made on either side and also perused the materials placed. (14) This Court has considered the rival submissions made on either side and also perused the materials placed. (15) From the submissions of the learned counsels appearing for both sides, this Court is of the view that the Courts below have failed to consider certain facts which are more important to the case. It is also to noted that the Courts below have jumped into conclusion without proper application of mind with regard to the law and principle in relation to the burden of proof. (16) It is relevant and important to understand the relationship between the parties as revealed from the Genealogy Tree. The Genealogy as narrated by the appellants is also accepted by the learned Senior counsel for the 2nd respondent. The undisputed Genealogy is necessary and hence, it is extracted below:- (17) It is admitted that by a registered Partition Deed under Ex.A3 dated 10.09.1975, several properties of the joint family consisting of the 1st defendant and his three brothers were divided. In the said Partition Deed, which is marked as Ex.A3, the property described under ''A'' Schedule, was allotted tothe 1st defendant. In the Partition Deed, it is specifically recited as follows:- (18) It is admitted that the properties mentioned in the ''A'' Schedule in the document – Ex.A3 was allotted to the 1st defendant in the said partition. An extent of 3.66 acres in S.No.555 and another extent of 1.23 acres in S.No.560 in Volagadam Village in Bhavani Taluk, Erode District, was allotted to the 1st defendant. It is to be noted that the parties have specifically admitted that the suit properties which are described in Ex.A3 as ''A'' Schedule is the ancestral joint family property of the 1st defendant and the plaintiffs. (19) It is also admitted that the 1st defendant sold an extent of 1.66 acres in SF.No.555 and another extent of 1.23 acres in SF.No.560 under Ex.A11 dated 23.03.1985. Similarly, the 1st defendant sold the remaining extent in SF.No.555 in favour of one Palanisamy under Ex.A4 dated 17.04.1985. However, in the document – Ex.A4, the recitals are as follows: (20) It is admitted that even before the execution of Ex.A4 dated 17.04.1985, an extent of 2.89 acres comprised in SF.Nos.555 and 560 was sold by the 1st defendant under Ex.A11 dated 23.03.1985. However, in the document – Ex.A4, the recitals are as follows: (20) It is admitted that even before the execution of Ex.A4 dated 17.04.1985, an extent of 2.89 acres comprised in SF.Nos.555 and 560 was sold by the 1st defendant under Ex.A11 dated 23.03.1985. It is admitted by the learned counsels appearing on either side that the document – Ex.A1 also contains similar recitals as found in Ex.A4 dated 17.04.1985 to the effect that properties are sold for acquiring some other properties. It is further admitted that the 1st defendant purchased the undivided share in the suit survey numbers under two documents, namely, Ex.A5 dated 30.09.1986 and Ex.A6 dated 17.09.1987. The Schedule of properties referred to in the document, Ex.A5 dated 30.09.1986 is extracted below:- (21) Similarly, the properties purchased under Ex.A6 dated 17.09.1987 is described as follows: (22) From the document Ex.A6, it is seen that the 1st defendant has purchased an extent of 3.6 acres out of a total extent of 4.36.5 Hectares. It is seen from the boundary description that the 1st defendant has undivided share on the Western side of the property conveyed under Ex.A5. It is pertinent to mention that under Ex.A6, the vendor is 1st defendant's brother who is none else than the husband of 1st defendant. Under Ex.A6, the 1st defendant purchased the property from his brother Balakrishnan. It is admitted that there was a subsequent partition between the 1st defendant and his brother's son by name Chinnasamy, son of Ayyana Reddy and in the said partition, the suit properties were allotted to the 1st defendant. It is seen that in the Partition Deed which is between the 1st defendant and his paternal uncle, marked as Ex.A7, the suit properties which is described as ''A'' Schedule was allotted to the 1st defendant. It is seen that in the Partition Deed which is between the 1st defendant and his paternal uncle, marked as Ex.A7, the suit properties which is described as ''A'' Schedule was allotted to the 1st defendant. In Ex.A7-Partition Deed, the recitals regarding the character of the suit properties is given as follows:- (23) Referring to the recitals of the documents, the learned counsel for the appellants contended that the suit properties are the ancestral properties of the 1st defendant and plaintiffs ; whereas, the learned Senior counsel appearing for the 2nd respondent/2nd defendant would contend that the suit properties are the separate properties of the 1st defendant as the property that was allotted to the 1st defendant in the subsequent partition under Ex.A7 are referred to as ancestral properties as well as the properties acquired by the Sale Deed. (24) After consciously referring to the documents, this Court is able to see that the 1st defendant obtained substantial properties under the document Ex.A3-Partition Deed dated 10.09.1975. The document-Ex.A3 specifically refers to the self acquired and joint family properties of the 1st defendant and his brother which were jointly enjoyed by them. Therefore, as admitted by parties and the learned counsels the properties allotted under Ex.A3 are the joint family ancestral properties of the 1st defendant and the plaintiffs. It is admitted that the 1st defendant sold the substantial properties of the family under Ex.A4 and Ex.A11 dated 17.04.1985 and 23.03.1985 successively. It is not in dispute that the recitals of the two Sale Deeds under Exs.A4 and A11 is to the effect that the properties were sold for the purpose of purchasing other properties and also for discharging the loan availed from the Cooperative Bank. After selling the substantial properties under Exs.A4 and A11, the 1st defendant has purchased an extent of 5.40 acres in suit survey number from his brother under Exs.A5 and A6. Though the Sale Deeds under Exs.A5 and A6 does not indicate that the properties were purchased by the 1st defendant on behalf of himself and plaintiffs, this Court is of the view that the properties were purchased out of the sale proceeds, the 1st defendant had with him by selling the joint family properties under Exs.A4 and A11. Though the Sale Deeds under Exs.A5 and A6 does not indicate that the properties were purchased by the 1st defendant on behalf of himself and plaintiffs, this Court is of the view that the properties were purchased out of the sale proceeds, the 1st defendant had with him by selling the joint family properties under Exs.A4 and A11. Since the properties were in the same survey number and there was no division by metes and bounds between the 1st defendant and his paternal uncle, there appears to be a subsequent partition under Ex.A7 dated 23.01.1990 under which the suit schedule properties were allotted to the 1st defendant. It is admitted that the 1st defendant allotted an extent of 5.34 acres under Ex.A7 and the properties allotted under Ex.A7 are the suit properties. (25) Therefore, the question that would arise for consideration in this case is whether the properties purchased by the 1st defendant under Exs.A5 and A6 would be joint family property or self acquired property of the 1st defendant? (26) The 1st defendant had admittedly sold the joint family properties with specific recitals that the sale was effected for purchasing other properties. When the joint family properties are sold for purchasing other properties, it can be inferred that the properties purchased under Ex.A5 and Ex.A6, just one year later can be treated as the property purchased out of joint family funds. It is to be noted further that the existence of the joint family consisting of the 1st defendant and plaintiffs having substantial properties is evident from the documents. The 2nd defendant is not a stranger and therefore, she is also expected to be aware that the 1st defendant is a member of joint family who was in possession of substantial joint family properties. The 1st defendant being a senior member and Kartha of the joint family, there is a presumption that the properties purchased in the name of Kartha are for the benefit of joint family and the burden lies on the person claiming under the Kartha to prove otherwise. (27) Therefore the question for consideration is whether the subsequent acquisition in the name of Kartha should be treated as joint family property or self acquired property of the Kartha? (27) Therefore the question for consideration is whether the subsequent acquisition in the name of Kartha should be treated as joint family property or self acquired property of the Kartha? (28) In the instant case, the sale proceeds available with the 1st defendant by sale of joint family of properties can be presumed when the sale of joint family property was for purchasing other properties. Therefore, the existence of ancestral nucleus is proved. When some senior member of joint family possessing funds by sale of joint family property, acquires another property in his name, it can be presumed that the properties are the joint family properties unless there is evidence available to show that the member of the joint family had separate source for purchasing the properties in his individual name. (29) The law is settled by several precedents as regards acquisition of property by member of joint family as applicable to Mithakshara. It is true that there is no presumption that property purchased in the name of the individuals is not a joint family property. The plaintiff in a suit for partition claiming right over the property purchased in the name of other coparcener should establish that the joint family was possessed with some property with the income of which the property could have been acquired. In other words, the plaintiff should prove that the joint family had sufficient funds to purchase the property or possession of some joint family property from their nature and relative value form the nucleus from which the property in question may have been acquired. When the existence of sufficient joint family property or nucleus is proved, the burden shifts to the party alleging self acquisition to establish that the property was acquired with the aid of the joint family, out of his self earnings. However, if the property is purchased in the name of Kartha or the Manager of the joint family or the joint family was in possession of sufficient joint family assets or funds, the onus would be on the Kartha or the Manager of the family to prove that the acquisition made by him was without the aid of the said joint family assets or funds. (30) From a perusal of few judgments of the Hon'ble Supreme Court and the Division Bench of this Court in P.R.Kannaiyan and 7 Others Vs. (30) From a perusal of few judgments of the Hon'ble Supreme Court and the Division Bench of this Court in P.R.Kannaiyan and 7 Others Vs. Ramasamy Mandiri and 10 others reported in 2005 [4] CTC 457 and the subsequent judgments of this Court, the law is settled that an exception should be is carved out when acquisition is made in the name of Kartha or a senior member of the family. When Kartha or Manager of Hindu joint family has no independent income or if it is established that he is in possession of sufficient nucleus from the joint family properties, the burden lies on the Kartha or Manager to prove that the property has been acquired without the aid of the joint family. (31) In D.S.Lakshmaiah and Another Vs. L.Balasubramaniyan and Another reported in 2003 [10] SCC 310, it is held as follows:- ''The legal, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu Family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.'' (32) The exception carved out in the case of acquisition in the name of Kartha or Manager was not kept in mind by the Courts below while holding that the suit properties are the self acquired properties of the 1st defendant. In the present case, the 1st defendant remained exparte throughout and this Court also is persuaded by the learned senior counsel appearing for the 2nd respondent that the 1st defendant has colluded with the plaintiffs. Therefore, this Court presume that the 1st defendant even if examined, would support the case of the appellants/plaintiffs. However, from the entire pleadings in the written statement, this Court is unable to find any averment to the effect that the suit properties were purchased out of the independent income of the 1st defendant. As a matter of fact, there is no assertion or statement to the effect that the 1st defendant had independent means to acquire the said properties. As a matter of fact, there is no assertion or statement to the effect that the 1st defendant had independent means to acquire the said properties. (33) In the instant case, the 2nd defendant is none else than the brother's wife of the 1st defendant. In such circumstances, the 2nd defendant/2nd respondent herein is in a position to plead and prove the character of the property as self acquired properties of the 1st defendant. In other words, the 2nd defendant/2nd respondent being a close member of the family, cannot plead ignorance. It is important to refer to the stand taken by the 2nd respondent in the written statement. Though the 2nd defendant/2nd respondent denies every averment made in the plaint in paragraphs No.1 to 5 of the written statement and it is stated that the suit property originally belonged to the 1st defendant and he was enjoying the same as the absolute owner with all rights, there is no plea with regard to the source of income of the 1st defendant to purchase the suit properties. From the plaint averments and the recitals in the documents Ex.A4 and Ex.A11, the existence of joint family nucleus is established. Since the 1st defendant is the Kartha of family, the burden shifts on the 2nd defendant to prove the independent source of income or that the property under Ex.A5 to Ex.A7 are the self acquired property of 1st defendant. There is no averment in the written statement of the 2nd defendant/2nd respondent to suggest that the 1st defendant was self employed or had other income to acquire the suit properties. The Courts below have failed to consider the pleadings in a proper perspective. The judgments of the Courts below, therefore are vitiated in not applying the principles of law settled by various precedents in a proper perspective. The Courts below decided the issue regarding character of suit properties by wrongly shifting the burden of proof on the appellants ignoring the pleadings and recitals in the documents Exs.A4 and A11. The judgments of the Courts below, therefore are vitiated in not applying the principles of law settled by various precedents in a proper perspective. The Courts below decided the issue regarding character of suit properties by wrongly shifting the burden of proof on the appellants ignoring the pleadings and recitals in the documents Exs.A4 and A11. (34) When the properties were acquired by the 1st defendant at the time when the 1st defendant had sufficient nucleus, the burden lies on the purchaser from the 1st defendant to show the independent income or the independent source for the 1st respondent/1st defendant to purchase the property and the 2nd defendant/2nd respondent herein in the present case who is none else than the wife of the 1st defendant's brother is bound to prove the character of the property as the self acquisition of the 1st defendant so as to claim absolute title on the basis of the decree obtained by her against the 1st defendant in the suit for specific performance and the subsequent proceedings. The 2nd defendant / 2nd respondent is not entitled to claim title to the entire property without proving that the suit properties were purchased by the 1st defendant / 1st respondent out of his separate income or independent source without the aid of the joint family income or nucleus. In the suit filed by the 2nd defendant/2nd respondent for specific performance, the plaintiffs/appellants are not parties. Therefore, the judgment and decree and the subsequent orders in the execution proceedings in OS.No.23/1997 are not binding on the appellants / plaintiffs. The appellants/plaintiffs need not challenge the judgment and decree in the other suit as they are not parties. Therefore, the appellants/plaintiffs' right to seek partition in the suit properties cannot be curtailed by the decree in the previous suit filed by the 2nd defendant / 2nd respondent against the 1st defendant / 1st respondent alone. (35) For the reasons stated above, this Court is of the view that the appellants/plaintiffs are entitled to 3/4th share in all the suit properties and that the suit for partition is maintainable and therefore, the suit in OS.No.252/2003 has to be decreed as prayed for. (35) For the reasons stated above, this Court is of the view that the appellants/plaintiffs are entitled to 3/4th share in all the suit properties and that the suit for partition is maintainable and therefore, the suit in OS.No.252/2003 has to be decreed as prayed for. (36) In fine, the substantial questions of law are therefore answered in favour of the appellants / plaintiffs herein and therefore, the Second Appeal is allowed and the judgment and decree dated 17.10.2016 made in AS.No.29/2011 by the learned IV Additional District Judge, Erode District at Erode, confirming the judgment and decree dated 24.08.2009 made in OS.No.252/2003 on the file of the learned Subordinate Judge, Bhavani, is set aside. Consequently, the suit in OS.No.252/2003 on the file of the learned Subordinate Judge, Bhavani stands decreed as prayed for.