RAJANI SIVAKUMAR Vs. DURAIKANNU

JUDGEMENT

(1.) The Second Appeal is filed by the legal heirs of the deceased second plaintiff-Kribalini, against the judgment and decree dated 25.11.2002 in A.S.No.44 of 2002 on the file of the Principal District Court, Nagapattinam, confirming the judgment and decree dated 14.8.2001 in O.S.No.202 of 1997 on the file of the Additional Sub-Court, Nagapattinam.

(2.) The averments in the plaint are as follows: The deceased first plaintiff Nagalakshmi's father is Sattaya Pillai and her mother is Rajamani Ammal. They were also having two sons, Viswanathan and Ramachandran and two daughters, Velambal and the deceased first plaintiff-Nagalakshmi. The father and the mother died 15 years ago. The suit properties belong to one Chidambaram Pillai and his wife Sivagami. They do not have any issues. Chidambaram Pillai has executed a Will in favour of Rajamani Ammal on 25.6.1930 bequeathing all his properties in favour of Rajamani Ammal, the mother of the deceased first plaintiff. Since they were not having any children, after the death of Chidambaram Pillai, Rajamani Ammal acquired the properties and enjoyed the properties along with her husband and both died intestate. As per the said Will, Rajamani Ammal was given only the life estate and after that, her children alone are entitled for absolute right over the properties equally. So, after the death of both Rajamani Ammal and Sattayappan Pillai, both their children, Ramachandran, Viswanathan, the deceased first plaintiff-Nagalakshmi and Velambal, each are entitled to 1/4 share in the properties. Ramachandran died intestate without issues ten years ago. Velambal has after marriage, left India and her whereabouts are not known to them. Their another son Viswanathan also died leaving behind defendants 1 and 2 in the year 1986 and so, the deceased first plaintiff and the legal heirs of Viswanathan, each are entitled to 1/2 share in the properties. Velambal has only come over to India recently and hence, she was impleaded as third defendant. After the death of Viswanathan, the deceased first plaintiff-Nagalakshmi and defendants 1 and 2 are jointly enjoying the properties. Since the defendants are evading to share the properties, the first plaintiff (since deceased) was constrained to file the suit for partition of half-share in the suit properties and other reliefs and prayed for a decree.

(3.) The gist and essence of the written statement filed by the second defendant, adopted by the first defendant, are as follows: As per the Will executed by Chidambaram Pillai on 25.6.1930, which was duly executed, Rajamani Ammal was having only the life estate and after her lifetime, her male issues alone are entitled to properties. Since the deceased first plaintiff was a female issue, she was not entitled to any share. The second defendant settled at Chennai and is working at Port Trust, in Chennai. It is false to contend that the second defendant, as Manager of the family, maintaining the family absolutely, and the same is imaginary. The deceased first plaintiff wantonly suppressed the recitals in the Will and filed the suit. Viswanathan Pillai, the father of the defendants 1 and 2, was also having the legal heirs as Sukumaran, Vasuki, Paarivel, Megala, apart from the defendants 1 and 2. So, they are also necessary parties. Since they are not impleaded as parties to the suit, the suit is bad for non-joinder of necessary parties. The deceased first plaintiff's daughter Kribalini, i.e. the second plaintiff, after marriage, was residing at Pondicherry. On 10.4.1998, the first plaintiff's grand daughter Rajini's marriage was performed and celebrated at Sivasakthi Marriage Hall, Nagapattinam. Velambal attended the marriage and she was not impleaded as party. So, the suit is bad for non-joinder of necessary party. The deceased first plaintiff was residing at son-in-law's house. The suit claim is barred by limitation. The suit ought to have been valued under Section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act. Hence, the defendants prayed for dismissal of the suit.