ARABIA BIBI Vs. SARBUNNISA

JUDGEMENT

(1.) THIS Second Appeal is directed against the judgment and decree dated 27.03.1997 passed by the learned Additional District Judge, Nagapattinam, in A.S.No.9 of 1997, whereby the judgment and decree passed by the learned Additional Subordinate Judge, Mayiladuthurai, dated 22.03.1996 in O.S.No.287 of 1991, were confirmed.

(2.) THE appellants are defendants 1, 3, 5 and 7; the 1st respondent is the plaintiff and respondents 2 to 4 are defendants 2, 4 6 and 8. Respondents 5 to 8 are the legal representatives of the deceased 2nd respondent/2nd defendant. To avoid confusion, the parties are hereinafter described as they were arrayed in the suit.

(3.) THE case of the plaintiff was resisted by the defendants and filed a written statement stating that it is not correct to state that the plaintiff is in joint possession and enjoyment of the suit properties along with the other defendants. THE plaintiff's marriage has been conducted at the heavy expenses from and out of the sale proceeds of the properties of the defendants. At the time of marriage, the properties worth more than her share have been sold since the family of her husband is affluent and very rich and as such, she has no share to be claimed in the suit properties and she must be deemed to have relinquished her share. After marriage, the plaintiff developed a sort of superiority complex and on account of economic imbalance between her and the defendants, the plaintiff gradually lost her touch with the defendants' family and abandoned the properties and she has never been in participation of the rents and profits from the suit lands. THE 1st defendant has not only been in exclusive possession and absolute enjoyment of the properties but there has also been in open and unequivocal denial of the title of the plaintiff in respect of the suit properties. In fact, the 1st defendant had alienated an extent of 0.90 cents of nanja lands in R.S.No.253/7B and another extent of 0.96 cents of nanja lands included in the suit properties in utter exclusion and without reference to the plaintiff under a sale deed dated 23.12.1974 to meet the marriage expenses of the 5th defendant. Though the plaintiff was also aware of the said alienation, she never raised any objection and as such, she has no right to the said properties. Apart from that, some of the items of the suit lands have been leased out by the 1st defendant to the tenant and thereafter, they have been surrendered to her by the tenant in 1967, which show that the 1st defendant has been exclusively dealing with the properties without reference to the plaintiff. Though Kamaludeen died in 1963, the plaintiff filed the present suit after 25 years, claiming partition. Moreover, the recent spurt in the value of the suit properties, which were considered worthless decades ago, has led the plaintiff to file the suit contrary to her earlier abandonment of her right of a share. Even if the plaintiff had any such right, the same has been extinguished by ouster. Hence, they prayed for the dismissal of the suit.