K P KRISHNAKUMAR Vs. RADHALAKSHMI AMMA

JUDGEMENT

(1.) THIS R. F. A. preferred under Section 96 of the Civil Procedure Code is directed against the judgment and decree dated 23-3-1996 passed in o. S. No. 10472 of 1993 on the file of the III Additional City Civil Judge, mayo Hall, Bangalore (for short, 'the Court below' ). The appellant is the defendant in the suit. The suit was filed by the respondent herein for partition of the suit schedule property by metes and bounds and for separate possession.

(2.) THE case of the plaintiff is as follows: the plaintiff is the wife/widow of late M. C. Parameshwaran Nair the defendant is the son of M. C. Parameshwaran Nair through his first wife, late Kanakalatha by name M. C. Parameshwaran Nair died intestate on 29-2-1992 at Bangalore leaving behind the plaintiff and the defendant as his only surviving heirs to succeed to the suit property which was his self-acquired property. M. C Parameshwaran Nair was employed in Indian Airlines The suit schedule property is a residential building consisting of ground and first floor. The defendant is in occupation of the ground floor and he has let out the first floor to a tenant. The defendant was illtreating the plaintiff even during the lifetime of M. C. Parameshwaran Nair and the said illtreatment aggravated after the demise of M. C. Parameshwaran Nair. The plaintiff has no independent, source of income to support her living. The plaintiff is entitled to half share in the suit schedule property. The plaintiff demanded from the defendant to effect partition, but he refused. That lead to the plaintiff causing legal notice on 11-4-1992. The defendant sent an untenable reply. The cause of action to file the suit arose on 29-2-1992 when M. C. Parameshwaran Nair died and on 11-4-1992 when she got issued legal notice to the defendant.

(3.) THE suit was contested by the defendant by filing written statement. In the written statement, the defendant while admitting that the plaintiff is his step-mother and second wife of his father, denied other material allegations in the plaint. The defendant stated that on 29-2-1992 his father died leaving behind a Will dated 10-8-1987 and he was not aware of this fact before the death of his father and he came to know that fact only a week after the death of his father when one sudhakaran (D. W. 2) told the defendant about his father having executed the Will. Thereafter, the defendant made a through search in the house and he could not find the original Will, but he could trace a carbon copy of the original Will dated 10-8-1987. D. W. 2 having seen the said copy of the Will, told him that that was true copy of the original will executed by M. C. Parameshwaran Nair. The plaintiff has filed the suit vexatiously and at the instance of her brothers and other relatives. Under the Will, his father has bequeathed the suit schedule property absolutely in favour of the defendant and directed the defendant to provide maintenance to the plaintiff. The defendant is ready and willing to act according to the terms of the Will and, accordingly, he sent money orders towards monthly maintenance to the plaintiff, but the plaintiff refused to receiver the same. The plaintiff has no light whatsoever in the plaint schedule property except to receive maintenance. The suit instituted by the plaintiff is not maintainable and it is hit by the provisions of Order 23, Rule 1 as well as Order 2, Rule 2 of the CPC. The court fee paid on the plaint is insufficient. The plaintiff had earlier filed misc. P. No. 461 of 1992 for partition and the said petition came to be dismissed as withdrawn as the plaintiff filed a memo to that effect and, in that view of the matter, the plaintiff has abandoned her right to institute the present suit.