S.C.SUGUMARAN Vs. S.RENUKA

JUDGEMENT

(1.) The plaintiff is the appellant in the Second Appeal. The plaintiff filed a suit for partition of the suit property on the ground that plaintiff father died intestate and that the legal heirs are entitled to a share in that.

(2.) According to the plaintiff, the first defendant is the elder of the family, taking advantage of the situation that the plaintiff and his father were not in cordial relationship, has forged and manipulated a Will from his late father. On the basis of forged Will, he filed an Original Petition in O.P.No.437 of 1997 for probate of Will, which was later converted into TOS and was dismissed. After the dismissal, the first defendant maneuvered to get rid of the sisters by paying some monetary amount and released their shares over the said property in his favour. Since the Will is forged and the plaintiff was not made a party to the said TOS the judgment of the Court is not binding upon him. He caused a legal notice to the defendant on 14/11/2009 demanding peaceful partition of the said property. The first defendant by his reply dtd. 30/11/2009 refused to accept the same on untenable pleas. Hence, he filed a suit for partition.

(3.) In the written statement, it is stated that the first defendant filed a Will for probate in O.P.No.437 of 1997 impleading the plaintiff and his sisters and his nieces (sister's daughters) as respondents. However, after receipt of notice, the plaintiff has not chosen to participate in the proceedings. The sisters daughters have filed caveat and contested the O.P and it was converted into T.O.S. No.33 of 2001. The TOS was dismissed on improper ground and hence he filed an appeal in O.S.A.No.391 of 2002. The said matter was compromised and a probate was granted in favour of the first defendant by the order of the I Bench on 16/9/2003. When the plaintiff sent a legal notice on 8/4/2004 containing the same set of allegations and it was replied by the first defendant as early as 15/4/2004. Having kept quite for five years he filed the above suit for partition suppressing the material facts.