MAYA AKBER Vs. RANI MENON

JUDGEMENT

(1.) The appellants herein are defendants No.1 and 2 in O.S.No.4059/2004. The said suit was filed by the first respondent herein seeking for partition and separate possession of her share in the suit schedule property. The trial Court after considering the case has decreed the suit by its judgment dated 30.01.2010 holding that the plaintiff is entitled to 1/4th share in the suit schedule property. The defendants No.1 and 2 claiming to be aggrieved by the same are before this Court in this appeal.

(2.) The parties would be referred to in the same rank as assigned to them before the Court below for the purpose of convenience and clarity.

(3.) The plaintiff claims that the plaintiff and defendants No.1 and 2 are the daughters of late E.A.Varghese. The defendants No.3 and 4 are the children of her brother late Mohan Varghese. It is her case that her father was the absolute owner of the suit schedule property having purchased the same under a sale deed dated 26.03.1955. The father who had retired from the Indian Air force was living in the said house along with his family after his retirement till he died on 25.05.1980. He had left behind the mother of the plaintiff, Mrs.Mary Varghese and the parties herein as also the brother of the plaintiff. The suit schedule property had been bequeathed by their father to their mother under a WILL dated 21.10.1968. The said WILL was probated in C.P.No.5/1981 and as such their mother was the absolute owner exercising all rights of ownership until she died on 6.6.2000. The brother of the plaintiff has predeceased their mother. According to the plaintiff, their mother late Mary Varghese died intestate leaving behind the plaintiff, defendants No.1 and 2 and the defendants No.3 and 4 who are the lineal descendants of her brother. It is therefore averred that after the death of their mother, the plaintiff and defendants have succeeded to the estate including the suit schedule property. It is in that context she contends that she is entitled to 1/4th share. The plaintiff further claims that the first defendant handed over 6 fixed deposit receipts and one pair of diamond earrings to the plaintiff on 18.04.2004. The plaintiff has received the same without prejudice to claim the share in the other movable and immovable properties left behind by her mother. According to her, she had demanded her legitimate share at that point in time itself and defendant No.1 had promised to give the same at the earliest.