M V CHOCKALINGAM PILLAI Vs. ALAMELU AMMAL

JUDGEMENT

(1.) This Letters Patent Appeal has been filed against the judgment of Ismail J., (as he then was) in A. S. No. 369 of 1970, on the file of this Court, which arose out of the suit 0. S. No, 220 of 1967, on the file of the Sub-Court, Coimbatore.

(2.) The plaintiff filed that suit against her brother the first defendant in the suit, for partition and separate possession of her alleged one fourth share in the suit properties. The suit properties originally belonged to Venkatachalam Pillai who died in the year 1942, leaving behind him his wife Achikannu Animal a son Chockalingarn the first defendant and a daughter the plaintiff. Achikannu Animal died in the year 1963. The plaintiff who is sister of Chockalingam, has claimed a one-fourth share in the suit properties on the basis that on the death of Venkatachala in 1942, her mother Achikannu Animal became entitled to a half share in the suit properties that as a result of the coming into force of Central Act XXX of 1956, the said half share which was inherited by Achikannu Ammal under the provisions of the Hindu Women's Rights to Property Act, 1937 (hereinafter became enlarged into an absolute estate of Achikannu Animal, that on the death of Achikannu Animal that interest devolved on her son the first defendant and her daughter the plaintiff in equal moieties and that therefore the plaintiff is entitled to claim a one fourth share in the suit properties.

(3.) The claim of the plaintiff was resisted by her brother, Chockaiinga, the first defendant. His case was that the suit properties belonged to the joint family of Venkatachala and himself, that ever since the death of Venkatachala In 1942, the First defendant alone has been in possession and enjoyment of the properties absolutely, that the first defendant's mother Achikannu Animal, though had a right to claim a half share in the suit properties by virtue of the provisions of the Act, did not in fact assert that right, that she did not file any suit for partition during the life tune that not even a unilateral declaration expressing her desire to divide from the other coparcener was made by her, and that, therefore, her right to claim a partition of a half share in the suit properties stood extinguished and the properties went to the first defendant by survivorship.