JUDGEMENT
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(1.)This Second Appeal is preferred against the judgment and decree dated 4.10.1989 made in A.S.No.90 of 1987 by the Court of I Additional District Judge, Tirunelveli, thereby confirming the judgment and decree dated 9.1.1987 made in O.S.No.57 of 1984 by the Court of Principal Subordinate Judge, Tirunelveli.
(2.)Tracing the history of the above second appeal coming to be preferred by the plaintiff in the suit, it comes to be known that the plaintiff/first appellant has filed the suit for partition of the schedule property by metes and bounds and allot 43/144 shares and put her in separate possession and order the mesne profits on averments such as that the suit property originally belonged to one Kader Mydeen Masthan Adam Rowther; that he was in possession and enjoyment of the same till his lifetime; that he died intestate on 25.11.1961 leaving one Khadar Mohidden Rowther, his younger brother, the defendants 1 and 2, his sisters, his wife and children the plaintiff and defendants 3 and 4, as his heirs and they were in joint enjoyment of the suit property; that in law, on the death of her father, the plaintiff became entitled to 2/9 shares in the schedule of property; that the plaintiff is now entitled to 19/72 shares after her mother's death; that K.M. Kadar Mohideen Rowther's 5/48 shares in the schedule of properties were sold in court auction to one Abdul Rahim, husband of the 3rd defendant and then he sold his undivided 5/48 shares to the plaintiff and the defendants 3 and 4 on 6.1.1982, 13.1.1982 and 31.1.1982 under three sale deeds and therefore, the plaintiff is entitled to undivided 5/144 shares apart from her share; that as a whole, the plaintiff is entitled to 43/144 shares in the suit schedule property; that the plaintiff finds it difficult to be in joint possession and hence she prays for partition and separate possession of the suit property.
(3.)On the contrary, while other defendants remained ex parte, the 4th defendant in his written statement would admit that the properties originally belonged to Kader Mohideen Masthan Rowther and that he died on 25.11.61 leaving behind the parties to the suit and one Kader Mohideen Rowther and his widow Suharal Beevi. This defendant would also admit the share of the plaintiff and the defendants 3 and 4 and further admits that the plaintiff is entitled to 43/144 shares in the suit schedule properties and would claim that he is entitled to 43/144 shares. He would further plead that the plaintiff never demanded for partition; that for the business run by late Kader Mohideen Rowther and late Suharal Beevi, they have borrowed Rs.30,000/- from one Arunagiri Nadar and the suit property was mortgaged by the defendants 1 to 4; that the said Arunagiri Nadar filed a suit in O.S. No. 368 of 1978 and got a decree; that this defendant requested the plaintiff and other defendants to contribute to the mortgage debt but they refused; that the plaintiff as a legal heir and as a purchaser is liable to contribute for the mortgage debt; that the plaintiff is not entitled to get a decree without paying the mortgage debt. On such averments, the defendants would also pray for partition of the suit property and to direct the plaintiff to contribute towards the mortgage decree.
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