MANIKKAM AMMAL Vs. APPAVU MUDALIAR

JUDGEMENT

(1.) PLAINTIFFS in O.S.No.37 of 1981 on the file of Subordinate Judge, Tindivanam are the appellant herein. They filed the said suit for passing a preliminary decree for partition and separate possession of their 3/5th share in Schedule A, B, C and D properties. The learned Subordinate Judge on appreciation of oral and documentary evidence, by the impugned judgment and decree dated 1.9.1988, dismissed the suit; hence the present appeal by the plaintiffs.

(2.) THE case of the plaintiffs as set out in the plaint are briefly stated hereunder: THE plaintiffs are the daughters and defendants 1 and 2 are the sons of one deceased Ponnia Mudaliar and his wife Unnamalai Ammal. Third defendant is the son of the first defendant. Unnamalai Ammal, mother of the plaintiffs and defendants 1 and 2 died intestate on 20.5.1978 leaving behind her surviving husband Ponnia Mudaliar, plaintiffs and defendants 1 and 2 as her legal heirs. Ponnia Mudaliar died intestate on 23.4.1979 leaving behind the plaintiffs and defendants 1 and 2 as his legal heirs.

(3.) FIRST defendant filed a written statement. It runs as follows: It is true that Ponnia Mudaliar effected a partition between himself and his sons by means of a Registered deed of partition dated 23.4.1965. In the said partition between father and sons, items 1 to 36 of the B schedule therein were directed to be enjoyed by defendants 1 and 2 in common and reserved for the maintenance of the first defendant's wife who is still alive. Subsequent to the partition, item 31 of Schedule A in the plaint was got by Ponnia Mudaliar by means of a decree of specific performance in O.S.No.490 of 1964 on 31.10.1972. The first defendant had spent Rs.15,000 for re-construction of the dilapidated tiled house therein. The items mentioned in "C" schedule were obtained under a compromise suit between Ponnia Mudaliar and one Karunanidhi. The father had incurred a debt of Rs.6,000 for purchase of machinery for the rice mill. The debit remained undischarged. The plaintiffs viz., the daughters were married at the expense of the family by the father to persons owning properties consistent with the status of the family and they were presented with jewels and other customary presents obtaining in Hindu families, on good and bad occasions. There was, therefore, no necessity to provide them separately by subsequent bequests in their favour. As a matter of fact, the father had purchased about 4 acres in the village in the benami of the 3rd plaintiff with his own moneys at a time when she was a minor. After the death of their father, the 2nd plaintiff realised Rs.1,000 on the basis of usufructuary mortgage. In such circumstances, the father executed a Will on 5.2.1979 while in a sound disposing state of mind and out of his own volition bequeathing all the properties which he got under the partition and subsequently inclusive of the rice mill in favour of the defendants 1 and 2. The defendants 1 and 2 have taken possession of the properties bequeathed in their favour under the Will, which took effect on the estator's death. The first defendant had also sold an extent of 3 acres, 46 cents which he got under the Will and set out as Schedule "C" in the plaint by means of two sales and the sales have been effected for proper consideration and in his own right; accordingly the plaintiffs are not entitled to question the same. Item 31 of A schedule, the house has been let out by the first defendant as a legate of the property in favour of the 5th defendant. The plaintiffs are not entitled to question the first defendant's right in that behalf also.