V DANDAPANI CHETTIAR Vs. BALASUBRAMANIAN CHETTIAR

JUDGEMENT

(1.) The unsuccessful plaintiff who lost his case in all the three Courts is the appellant in this appeal. The appellant (Dandapani Chettiar) filed O.S. No. 300 of 1974 in the Court of the subordinate Judge, Cuddalore for a declaration that the suit properties belonged him and defendants 2-9 and 23 (respondents 2-9 and 23) and for partition and separate possession of his 1/10th share in the movables and immovables and for recovery of past mesne profits. His case in brief is that the suit properties came Rajathiammal and that the properties were obtained by her from her mother Sivabagyammal. Rajathiammal succeeded the properties as Stridhana heir and on the death of Rajathiammal on 01.07.1972 issueless and intestate, in accordance with15(2) of the Hindu Succession Act, 1956 (hereinafter referred as "the Act") the suit properties devolved upon the heirs of the father of Rajathiammal i.e. Venugopal Chettiar. The appellant (plaintiff) and the respondents 2-8 (defendants 2-8) are the children of the said Venugopala Chettiar through his wife and the 9th defendant (9th respondent) is the son of the said Venugopala Chettiar through another wife and the respondent No. 23 (defendant No. 23) is one of his wives and they are the heirs.

(2.) The case of the first respondent Balasubramanian Chettiar (died) and the other respondents is that on the death of Rajathiammal, the sit properties devolved upon the heirs of the husband of Rajathiammal, namely, Mathukumarasamni under 15(1) of the Act in the absence of any issues her. In the alternative, the respondents contended that Rajathiammal executed a Will, Exhibit B-26, dated 15.06.1972 and that in accordance with the said Will, there would be a testamentary succession for the first respondent - Balasubramanian Chettiar and the others.

(3.) The Subordinate Judge, Cuddalore framed as many as 22 issues. The Sub-Court ok the view that the suit properties came Rajathiammal only because of the Compromise Decree in O.S. Nos. 8 of 1926 filed by one Natanasabapathy - son of Sivabagyam and 15 of 1942 and her pre-existing right has no relevance. The Sub-Court also held that only 15(1) of the Act is attracted which would be in favour of the first respondent Balasubramanian Chettiar and his supporting respondents/defendants. As regards the alleged Will, Exhibit B-26, the trial Court held that it is a true and valid document executed by Rajathiammal. On these findings, the trial Court negatived the appellants/plaintiffs claim and dismissed the suit.