M S SURESH Vs. PARVATHI

JUDGEMENT

(1.) AN interesting question that arise for consideration in these writ petitions is, whether the mother of a deceased child can maintain a suit, claiming partition against her husband and other members of the Joint Family?

(2.) THE marriage of the petitioner and respondent was solemnised on 6-1-1994 at Laxminarayanaswamy Temple, Krishnarajapet. Within three months from their marriage, a male child was born to them on 23-3-1994 and the child died on the same day in the evening. When the child was in the womb of the respondent, the petitioner herein had executed a release deed on 19-1-1994 in favour of his father and remaining members of the petitioner's family. Subsequently, the petitioner also filed a divorce petition in M. C. No. 11 of 1996 on the file of Principal Civil Judge (Senior Division) and Judicial Magistrate First class, Srirangapatna. The petition filed by the petitioner in M. C. No. 11 of 1996 was dismissed on merits on 6-11-2000. The respondent-wife filed a suit for partition and separate possession on the file of the Civil Judge (Senior Division), Srirangapatna in O. S. No. 7 of 2000 contending that she is entitled to 5/63rd share in all the suit schedule properties and she further requested the Court to declare that the release deed executed by the petitioner herein, in favour of his father and other members of the family on 19-1-1994 does not bind her and the same has to be set aside. The 1st defendant, who is the petitioner before this Court filed a detailed written statement. Based on the pleadings, the following issues were framed by the Court below:

(3.) ADDITIONAL Issue No. 1 was treated as preliminary issue and after hearing both the parties, the Trial Court held the said additional issue in negative and after holding that the suit filed by the parties claiming share in the properties in person, as maintainable. The legality and correctness of this Order is called in question in this writ petition.