DURAISWAMI AND ORS. Vs. SWAMINATHAN AND ORS.

JUDGEMENT

(1.) THIS appeal has been preferred by defendants 4 to 8 who were unsuccessful before the courts below.

(2.) THE plaintiffs' father belonged to Athur village in Kumbakonam Taluk and Chidambaram Padayachi got married his younger sister, namely, mother of the plaintiffs, to the plaintiffs' father Ganapathi and he brought him to his family after marriage. After the death of their father, the plaintiffs' mother had been living with Chidambaram Padayachi along with the members of his family till her death. It is also stated that Chidambaram Padayachi died issueless on 17.10.1973 and his wife pre -deceased him six months prior to his death. It is also stated that the mother of the plaintiffs had also, by sale of her jewels, contributed to the purchases made by Chidambaram Padayachi, The first plaintiff also contributed money from his salary while he was serving in the Army. Further, the plaintiffs had been assisting Chidambaram Padayachi in cultivating the lands so purchased and also deriving income thefeform. According to the plaintiffs, it is only in that manner various other items in the plaint schedule in Marudur, Kolakkudi and Vadathalaikulam were purchased by Chidambaram Padayachi. They are his separate properties and defendants 1 to 4 have no manner of right to the same. Chidambaram Padayachi wanted that the plaintiffs should take his properties after his death, since they were living with him and assisting him in managing the properties, while the defendants 1 to 4 were living in Kolakkudi. They were also aware of the wish of Chidambaram Padayachi. Accordingly, Chidambaram Padayachi extorted a Will on 15.10.1973 in favour of the plaintiffs while he was in a sound and disposing state of mind bequeathing all his properties, namely, the suit properties, to be enjoyed by the plaintiffs during their life time and to be taken by the male issues of the second plaintiff after the life time of both the plaintiffs, absolutely. By virtue of the said Will, the plaintiffs have the right to enjoy the properties till their life time. The said Will is his last Will and the same has been executed out of love and affection towards the plaintiffs by the said Chidambaram Padayachi. The Will is valid and binding on the defendants. Though Chidambaram Padayachi intended to get the Will registered after a week thereafter, he died suddenly due to old age and heart attack on 17.10.1973 and the said Will took effect on his death. Chidambaram Padayachi also handed over the documents of title to the plaintiffs and after 17.10.1973 they alone became entitled to all the properties which they were already in possession and enjoyment even before the death of Chidambaram Padayachi and they continue to be in enjoyment in their own right under the Will.

(3.) IT is seen that the plaint has been originally filed before the District Munsif, Chidambaram, and later transferred to the file of the District Munsif, Cuddalore. By an order dated 20.7.1976 the District Munsif, Cuddalore had returned the plaint for presentation before proper court on the ground that the plaint was beyond the pecuniary jurisdiction of the District Munsif. It is only thereafter it has been presented before the Sub Court, Chidambaram, and numbered as O.S.No.67 of 1976. The first defendant died even before the presentation of the plaint before the Sub Court.