N M SUBBARAM Vs. SARASWATHI AMMAL

JUDGEMENT

(1.) THIS second appeal has arisen from the judgment and decree of the learned District Judge, Dindigul made in A.S.No.109 of 1989, dated 20.11.1989 modifying the judgment and decree of the learned District Munsif, Dindigul made in O.S.278 of 1981, dated 22.3.1988.

(2.) THE first respondent herein filed a suit for declaration that the plaintiff is entitled to 2/3rd share in the "A" schedule property, for partition and allotment of separate possession in respect of the said share; for a permanent injunction restraining the defendants from interfering with her possession of B Schedule property and for damages and recovery of Rs.4033.32 from the defendant No.1, alleging that the properties described in "A" schedule originally belonged to Nattamai Munusamy; that Munusamy and his wife Kumarammal had five sons viz., Renganayil; Ramachari, Eswaraiyer; Chakkarapani and Subburam-the first defendant and one daughter the plaintiff; that Renganayil was given in adoption to one Sornaiyer; that during the lifetime of Munusamy Ramachari, Eswaraiyer and Chakkarapani had executed release deed and separated themselves from the family; that Munusamy died 10 or 12 years back leaving behind his wife and two children viz., the plaintiff and the first defendant; that Kumarammal, the plaintiff and the first defendant were enjoying the "A" schedule property jointly and without any objection; that the plaintiff was residing in a house adjacent to "A" schedule property; that Kumarammal was residing along with the first defendant in the "A" schedule property; that the first defendant as joint family manager was administering the suit property; that Kumarammal and the first defendant were enjoying the suit properties jointly, that Kumarammal executed a will on 6.10.1972 in favour of the first defendant in respect of her share in the "A" schedule property; that since the first defendant was making harassment and troubles to Kumarammal, she cancelled the said will document dated 6.10.1972 by document dated 18.7.1980; that she relinquished her 1/3rd share in the A Schedule property in favour of the plaintiff; that the plaintiff was in joint possession of 2/3rd share in A schedule property; that the "B" schedule property was rented out by the first defendant without the permission of the plaintiff and Kumarammal, to one K.S.Harikrishnan on 15.9.1978 under a rental agreement, fixing the rent at Rs.50 per month; that he received a sum of Rs.4,500 towards advance; that he also received Rs.550 from Harikrishnan towards rent for 11 months; that out of the said amounts, the first defendant is liable to pay Rs.3366.66 to the plaintiff; that the first defendant filed H.R.C.O.P. No.99 of 1980 against the said Harikrishnan before the Rent Controller, Dindigul, that when the said Kumarammal had paid Rs.2,000 to Harikrishnan in respect of the advance received by the first defendant, the said Harikrishnan handed over possession of B schedule property to the plaintiff; that the defendants have no right to remove the plaintiff from the suit property; that the first defendant is liable to pay Rs.4033.22 to the plaintiff; that the plaintiff issued a reply notice on 5.1.1981 to the first defendant's notice dated 26.12.1980; that the first defendant was prolonging the matter; that the first defendant was trying to evict the plaintiff from B Schedule property on the basis of the ex parte decree obtained in H.R.C.O.P. No.99 of 1980; that D-1 was making interference over the plaintiff's possession of B schedule property; that the first defendant was also liable to pay damages to the plaintiff, since the first defendant had illegally put the second defendant into possession as a tenant; and hence the plaintiff was entitled to get the abovesaid reliefs.

(3.) ARGUING for the appellant, the learned counsel inter alia would submit that this second appeal is limited to the question of the maintainability of the suit, that the suit for partition filed by the first respondent was not maintainable since the same was for partition by a female co-owner in respect of a dwelling house and the same is expressly barred under Sec.23 of the Hindu Succession Act, 1956; that the first appellate Court has failed to consider that the first respondent was also to bound to contribute to the debits incurred by the family, which was adjusted by the appellant; that the decision reported in Mookammal v. Chitravadiammal (1980)1 MLJ 310: A.I.R. 1980 Mad. 243 is not at all applicable the the present facts of the case; that it was a suit filed for partition by a daughter against the purchaser of the property described as a dwelling house of the family and this Court holding that the suit for partition was maintainable; that the said decision cannot be applied to the present facts of the case since in the suit, the only male member of the family in the presence of the other family members chose to alienate his half share in a dwelling house, but in the present case there was no question of alienation of any part of the property in question and hence the right of the female heir viz., the first respondent to claim the partition of the dwelling house would not arise and thus the suit was premature; that the suit was barred by limitation; and hence the judgments of both the lower Courts have to be set aside and the suit has to be dismissed.