N SABAPATHY Vs. PATTAMMAL

JUDGEMENT

(1.) DEFENDANTS 1, 2 and 6 to 8 in O.S.No.253 of 1979 are the appellants second appeal. DEFENDANTS 6 to 8 are alienees under defendants 1 and 2. The respondent is the plaintiff and respondents 2 to 4 are defendants 3 to 5 in the suit plaintiff laid the suit for partition and separate possession of a one-ninth share in the properties. The plaintiff claimed a share in the estate of one Arumugam, in the joint properties. There were four brothers-Rathinam, Narayanaswamy, Murugaiya Arumugam. The plaintiff is the daughter of Rathi-nam. DEFENDANTS 1 and 2 are the sons Narayanaswamy. DEFENDANTS 3, 4 and 5 are the sons of Murugaiya. Rathinam died August, 1962. Narayanaswamy died in 1957. Murugaiya died in 1968. With regard Arumugam, all the parties have a common case and that is, he was not heard of from for over seven years and hence he must be presumed to be dead under Sec.108 Indian Evidence Act. Admittedly Rathinam got separated from joint family by virtue oral partition of the year 1960. Only if Arumugam is held to have died prior to 1960, plaintiff could claim the share as she did through her father Rathinam. Hence, the question of the time of death of Arumugam on the basis of the presumption under Sec.108 Indian Evidence Act looms large in his case. The first court referred to the plaint averments that the plaintiffs father Rathinam, who went abroad, returned to India in or about 1958 Arumugam was then alive and hence we have to take it that only after 1958, Arumugam was not heard about. From 1958, to work out the presumption and arrive at the presumptive conclusion about the death of Arumugam, seven years had to lapse from 1958 and lapsed, when the question as to whether Arumugam was alive or dead arose in the suit, legal presumption came into play. In the absence of proof that Arumugam died at particular point of time within the seven years from 1958, the presumption of his became effective in 1965 and thereafter. The first court proceeded on these lines and that the plaintiff could not get a share in the estate of Arumugam, As a result, the first dismissed the suit of the plaintiff. However, the lower appellate court, on appeal by plaintiff, reversed the decision of the first court and granted the plaintiff a preliminary for partition.

(2.) IN this second appeal, directed against the judgment and decree of the lower appellate court, this court deemed fit to formulate the following substantial questions of law time of its admission:

(3.) AS a result of the above discussion, defendants 1,2 and 6 to 8 are enabled to succeed the lis, in the sense to throw out the very suit laid down by the plaintiff. Mr.G.Ethirajulu, learned counsel for defendants 1, 2, 6 to 8 submits that the lower court has gone further and held that defendants 1 and would not be entitled to any share in the estate of Arumugam. Once it is held the plaintiff herself is incompetent to lay the suit for partition, there is no need to adjudicate the rights of the other parties, who questioned the very competency of the plaintiff to claim a share in the estate of Arumugam. The lis, as whole, has got to be discountenanced and there is no room for discussion of any further question. The findings, if any, rendered by the lower appellate court with regard to entitlement of defendants 1 and 2 to share the estate of Arumugam will stand vacated.