CHINNAMMAL Vs. ELUMALAI

JUDGEMENT

(1.) THIS appeal is directed against the judgment of learned subordinate judge, Chengalpattu in A.S. No. 80 of 1989 in reversing that of learned District Munsif, Chengalpattu in O.S. No. 335 of 1981. The defendants 1 and 5 to 11 are the appellants in the above appeal.

(2.) THE suit was filed for directing the partition of the suit properties into 16 equal shares and to allot 9 shares to the plaintiff and to direct the defendants to pay mesne profits from the date of the plaint till the delivery of the plaintiff's share. According to the plaintiff, he is the son of one Palayam through his first wife/Pattammal. The 12th defendant is the daughter of Palayam and Pattammal. Pattammal died in 1966 and thereafter, the said Palayam married the first defendant as his second wife. The defendants 2 to 6 are the children of the first defendant. The seventh defendant is the younger sister of the first defendant. Palayam was having illicit intimacy with the seventh defendant. She was not married to Palayam and cannot in law be the legally wedded wife. The defendants 8 to 11 are the illegitimate children of the seventh defendant through Palayam. The plaintiff and Palayam constituted members of a joint family and the properties described in the schedule are the ancestral properties of Palayam and the plaintiff. Therefore, the plaintiff, as a co-parcener, was entitled to 1/2 share in the properties. The family was still joint. While so, Palayam, in collusion and in conspiracy with the defendants 1 and 7, appears to have created a fraudulent settlement deed in favour of the defendants 1 to 7. The plaintiff had obtained a registration copy of the settlement deed. The recitals therein are false and fraudulent. The plaintiff also denies the execution, the truth and the validity of the settlement deed. In spite of the repeated demand for partition, Palayam did not effect partition and thereupon, a notice was issued on 4-5-1980. There was no reply to the notice. Palayam died on 20-1-1981. The plaintiff finds it difficult to live jointly with the defendants and hence, the present suit.

(3.) THOUGH learned counsel for the respondents seeks to justify the findings rendered by the appellate Court, he agrees that even though the self-acquired properties and the ancestral properties were identified, the decree had been erroneously passed covering all the properties.