RUGMINI AMMA Vs. BHAVANI AMMA

JUDGEMENT

(1.) These appeals arise from a suit for partition. The appellant in S.A. No.598 of 1999 is the first defendant in the suit and the appellant in S.A. No.518 of 1999 is the third defendant in the suit.

(2.) The suit properties belonged to one Sankaran Nair. The plaintiff and defendants 2 and 3 are the daughters and the first defendant is the son of Sankaran Nair. The fourth defendant is the wife of Sankaran Nair. The case of the plaintiff is that the suit properties devolved on the parties equally on the death of Sankaran Nair and she is, therefore, entitled to 1/5 th share in the suit properties. Defendants 2, 3 and 4 supported the case of the plaintiff. The first defendant, however, contested the suit setting up a Will claimed to have been executed by Sankaran Nair bequeathing the suit properties to him. Alternatively, it was also contended by the first defendant that defendants 2 and 3 have released their rights over the properties in his favour and that, therefore, they are, at any rate, not entitled to any share in the suit properties.

(3.) The plaintiff, in fact, instituted a suit earlier as O.S. No.59 of 1981 on the same lines against the defendants for partition of the very same properties. In O.S. No.59 of 1981 also, the first defendant had set up the very same Will set up by him in the present suit and contended that the suit properties are not partible. Though the trial court found in the said case that the Will set up by the first defendant is not a genuine one and that the suit properties devolved on the parties on the death of Sankaran Nair as claimed by the plaintiff, it dismissed the suit holding that as the parties have orally partitioned the properties, the plaintiff cannot seek partition again and that she can only sue for recovery of possession of her share in terms of the oral partition. Though the plaintiff filed a suit thereafter as O.S. No.17 of 1986 for recovery of possession of a portion of the suit properties from the first defendant in the light of the decision in O.S. No.59 of 1981, the same was dismissed. Though the plaintiff challenged the decision in O.S. No.17 of 1986 in appeal, the appellate court dismissed the appeal observing that the plaintiff is free to file a fresh suit for partition. The present suit is instituted thereafter on that basis.