SINDHU AJAYAN Vs. DAMODARAN PILLAI

JUDGEMENT

(1.) Who will inherit to the property of a Hindu female inherited by her leaving no issues, from her mother and died intestate, when her father is alive, is the question to be settled in the second appeal. The appellant is the plaintiff and respondents 1 and 2 are defendants 1 and 3 in O.S.158/1995. Second defendant was a minor when the suit was instituted and was second appellant in A.S.24/1999. She died during the pendency of the first appeal unmarried and intestate. Appellant herein was declared her sole legal heir. Second respondent in the second appeal, the third defendant, died after the filing of the second appeal. Additional respondents 3 and 4 got themselves impleaded in the second appeal claiming that they are the second wife and daughter of the first respondent, which fact was disputed by the appellant. They were impleaded without settling the said dispute. Additional fifth respondent was subsequently got impleaded as one of the legal heir of the deceased second respondent.

(2.) Plaint schedule property originally belonged to Sankariamma, daughter of third defendant. First defendant is her husband and plaintiff and second defendant are their daughters. On the death of Sankariamma, her rights devolved on her legal heirs. Plaintiff instituted the suit contending that on the death of Sankariamma 1/3 share devolved on her and therefore, she is entitled to get that share separated. She admitted that defendants 2 and 3 are entitled to the remaining 1/3 share each. Defendants 1 and 2 filed joint written statement contending that first defendant is ready and willing to give the share of the plaintiff and he is in possession of the property for the second defendant also and plaintiff and third defendant had executed some other documents with respect to the plaint schedule property and O.S.433/1995 is pending. Third defendant filed a written statement contending that she had executed a settlement deed in respect of the plaint schedule property in favour of her daughter Sankariamma in 1971. But property is still in the possession of third defendant and she is cultivating the property. Sankariamma died on 19/2/1995 and on her death plaintiff and defendants 2 and 3 alone are entitled to her property. Third defendant also raised a contention that subsequently the settlement deed executed in favour of Sankariamma was cancelled and thereafter a partition deed was executed whereunder 74 cents were given each to the plaintiff and second defendant and third defendant had taken 44 cents and therefore, suit for partition is not maintainable.

(3.) Learned Munsiff on the evidence of PW1, DW1, Exts.A1 and B1 to B5 found that under Ext.A1 settlement deed, third defendant had transferred her entire rights over plaint schedule property in favour of Sankariamma and it was accepted and acted upon and thereafter third defendant is not entitled to cancel the set- tlement deed and therefore, cancellation deed No.922/1995 is void abinitio and hence partition deed No.3516/1995 is not having any validity. Finding that on the death of Sankariamma, her rights devolved on the plaintiff, defendants 2 and 3, learned Munsiff held that each of them is entitled to 1/3 share. A preliminary decree was passed directing division of the plaint schedule property into three equal shares and allotment of one such share to the plaintiff. Defendants 1 and 2 together challenged the judgment before District Court, Pathanamthitta in A.S.24/1999. Learned District Judge on re-appreciation of the evidence found that on the death of Sankariamma her rights devolved on her children, the plaintiff and second defendant as well as her mother, the third defendant and therefore, the preliminary decree is correct. But taking note of the subsequent death of second defendant, learned District Judge modified the preliminary decree providing that on the death of the second defendant, her rights devolved on the first defendant. Preliminary decree was modified to the effect that the plaintiff is entitled to 1/3 share and defendants 1 and 3 are entitled to the remaining 1/3 share each. Second appeal is filed challenging the said judgment.