V. NAGAMMAL Vs. PALANISAMY @ KANNARAISU

JUDGEMENT

(1.) This Second Appeal has been filed against the Judgement and Decree dated 30.12.2009 in A.S.No.123 of 2008 on the file of the Principal District Judge's Court, Coimbatore, modifying the judgement and the decree dated 24.04.2008 in O.S.No.423 of 2006 on the file of the II Additional Subordinate Court, Coimbatore and set aside the same.

(2.) Plaintiffs and defendant are the sisters and brother. The suit property is a self-acquired property of their father. He executed his last Will on 30.11.1981. As per the Will, he bequeathed life estate to his wife and vested remainders to his children (who are plaintiffs and defendant herein). The plaintiffs' mother Ramathal predeceased their father. The father also died on 30.06.1999. Subsequent to the death of their father, the Will came into effect and plaintiffs and defendant have inherited the same and they are in joint enjoyment. The defendant is physically cultivating the property on behalf of the other sharers. But he did not cooperate with the plaintiffs for an amicable division of the suit property and hence, the plaintiffs have filed this suit for partition and division of their 3/4th share in the suit property. The suit property is not the self-acquired property of Perumal Gowder but it is the ancestral property of Perumal Gowder and the respondent/defendant. The property described under the said Survey No.597/B2 does not belong to the family of the respondent/defendant. When Perumal Gowder was alive, the defendant filed a suit for partition in O.S.No.3318 of 1981 and the suit ended in a compromise and the compromise decree was passed on 23.04.1985. As per the compromise decree, the suit property which is described as the first item of 'A' Schedule, has been allotted to the share of the defendant and property described as 'B' Schedule in the compromise decree, has been allotted to the share of the plaintiffs' father and hence, the plaintiffs cannot claim any share in the suit property which is shown as first item in Schedule 'A' of Ex.B2 (final decree in O.S.3318/1981). The Will dated 30.11.1981 was superseded by the compromise decree passed on 23.04.1985 in O.S.No.3318 of 1981. The plaintiffs are not in joint enjoyment of the property and they are not entitled to any share in the suit property and hence, the suit was dismissed.

(3.) On the side of the plaintiffs, 3 witnesses were examined as P.W.1 to P.W.3 and Exs.A1 to A4 were marked. On the side of the defendant, 1 witness was examined as D.W.1 and Exs.D1 to D14 were marked.