P SUBRAMANIAN Vs. RAMACHANDRAN

JUDGEMENT

(1.) Defendants 1,2 and 5 in O. S. 234 of 1984 on the file of Sub-Court, Ernakulam are the appellants. The suit for partition by the first respondent herein was decreed as prayed for and the appeal is directed against that judgment and decree

(2.) Plaintiff, defendants 1, 3 and 4 are brothers and 5th defendant is their sister. They are the children of Parameswara Iyer and Thailambal. Second defendant is the wife of first defendant. The suit for partition was in respect of 6 3/4 cents of property with a building therein owned by Parameswara Iyer and Thailambal. Parameswara Iyer died on 9-9-93 and Thailambal died on 15-5-82. In the plaint, plaintiff alleged the following facts: Plaintiff is the eldest child of Parameswara Iyer and Thailambal. The plaintiff had passed school final and as he could not pursue his studies due to poor financial situation he left Kerala at the age of 18 in search of some job and that he got a job in Calcutta and he had been sending money to his parents. Defendants 1, 3 to 5 therein were given proper education and defendants 1 and 3 could become graduates and the 4th defendants studied up to intermediate class and all of them later got employment. Plaintiff continued to make monthly remittance to his parents for meeting household expenses. Plaintiff's parents were residing in a rented building. At the instance of plaintiff, the building in which they were in occupation was available for purchase. Plaintiff sent money for purchasing the property in 1965. Various amounts were sent by drafts. The fifth defendant was given in marriage in 1952 and for that also the plaintiff incurred expenses. Plaintiff's parents were not keeping good health and they were under treatment. First defendant and his wife were not residing along with the parents. They were harassing the parents. Plaintiff retired from service in 1981 and he could come back to Ernakulam only in 1983 November. In 1984, plaintiff talked with the first defendant about division of the plaint schedule property. The first defendant under some pretext or other was evading the subject and on one day plaintiff casually met the original owner, who sold plaint a schedule property to plaintiff's parents. She said that a document was got registered by defendants 1 and 2 on 16-10-81 and on that day plaintiffs mother was seriously ill and the original owner of the property was sent for and when she came to the residence of the plaintiffs parents, plaintiffs mother was found seriously ill and was not able to talk freely. Plaintiff further alleged that his mother told that lady that the first defendant had threatened her with harassment and ill-treatment, if she did not do so as dictated by him. Her brother-in-law Sankara Iyer also came to the plaintiff's residence. They thought that the plaintiff's mother would take her last breath soon. Then she saw the first defendant coming to the house along with the Sub-Registrar and few others. A document was also brought by the first defendant. The first defendant then asked the lady to get the thumb impression of the plaintiff's mother. The thumb impression was just affixed and that lady was also required to sign in that document. She did not know what it was. Her brother-in-law Sankara Iyer also signed in that document. Plaintiff was not aware of further details of the documents. Though the plaintiff had visited the house, mother did not say anything about the documents for fear of the first defendant and his wife. Plaintiff with much difficuity came to know that a Will was allegedly executed by them. Plaintiff obtained a registered copy of the same and he came to know of the contents therein. Plaintiff alleged that his parents could not have voluntarily executed any such document and the alleged Will was vitiated by fraud and coercion by defendants 1 and 2. Plaintiff's parents were made to sign that document by defendants 1 and 2 without making them understand the same. Plaintiff alleged that though the acquisition of the property was with the plaintiff's own funds and the plaintiff could have claimed whole plaint A schedule property for he did not want to enforce such claim and, therefore, filed the suit for partition and prayed possession of 1/5 schedule of the plaint schedule property.

(3.) Defendants 1, 2 and 5 filed a joint written statement denying the allegations in the plaint. It is alleged that the plaintiff discontinued his studies and left his abode according to his free-will and there was no financial difficulty for the plaintiff to continue his studies. The plaintiff was not looking after the parents and other members of the family. He wanted to have his own independent life. Whatever little money he used to send was not sufficient to meet their medical expenses. Parents acquired property very near to plaint A schedule property with their own fund. When the original owner of plaint A schedule property offered the said property for sale, parents sold their property and purchased the same mainly with the funds available with them. The entire consideration was paid to the owner in lump. Plaintiff used to send amounts in the name of parents. Such amounts were being spent for acquiring property in his name. The entire amounts sent by the plaintiff was invested for acquiring landed properties at Vechoor near the residence of 5th defendant. Thus, an extent of 3.75 acres of property was purchased at Vechoor in the name of plaintiff and his wife. In 1975 he purchased property in Ernakulam and he later constructed a building therein. First defendant was away from Ernakulam in connection with his job. His wife and children were staying with the parents. For the treatment of the parents, the entire expenses were met by the first defendant. Plaintiff had not spent Rs. 5,000/- for funeral obsequies of mother. He spent Rs. 1,500/- for the first death anniversary function. Plaintiff was collecting income from the property he had purchased and occasionally the 5th defendant used to send coconuts and other income to the parents, but they were not allowed to take income from this property as alleged by the plaintiff. In the past several years, plaintiff had been living away from Ernakulam and he has no idea about the family life and well-being of the parents. Allegations in paragraphs 24 and 25 of the plaint are not correct. After the death of father, plaintiff came to know that the parents had executed a Will in 1981. Parents had entrusted this document to Sri A. K. Sreenivasan, Advocate. Plaintiff and defendants 1 and 5 went to advocate Sri A. K. Sreenivasan and requested him to read the document. Sri A. K. Sreenivasan came to the house of defendants and read the document. Plaintiff wanted to have a copy of the document and Sreenivasan gave the date and registration number of the document. It was after that the plaintiff obtained a certified copy of the document. Plaintiff did not demand any partition. At the time of execution and registration of the Will, family doctor one Dr.C. K. Balan was present. The parents executed the Will out of their free-will and volition. No body exercised any fraud or coercion.