THILLAINAYAKI AMMAL Vs. SANDANATHAMMAL

JUDGEMENT

(1.) THE plaintiff in O.S.No.92 of 1981, on the file of the Additional Subordinate Judge's Court, Tuticorin, is the appellant in the appeal. THE suit for partition declaring that the plaintiff is entitled to 1/11th share in the plaint schedule properties, for final decree by appointing an Advocate Commissioner for dividing the schedule mentioned properties by metes and bounds and converting joint family possession into separate possession and also allotting separate portions to the plaintiff, for a preliminary decree directing defendants 1 to 3 to render accounts for the past and future income and for profits from 31.10.1976, and for passing a final decree ascertaining the amount due to the plaintiff by appointing a Commissioner, has been dismissed by the lower Court.

(2.) HER case in the plaint is as follows: She was the eldest daughter of late V.T.V.T.Kanagasabapathy Pillai, the first defendant being his widow, defendants 2 and being his sons, and defendants 4 to 10 being his other daughters; the suit properties belonged to Kanagasabapathy Pillai, who died intestate on 31.10.1976 leaving behind the plaintiff and the defendants as his heirs; the properties set out in the schedule were Hindu joint family properties of plaintiffs and defendants and separate properties of late Kanagasabapathy Pillai- most of them were self-acquisitions of Kanagasabapathy Pillai; the plaintiff and the defendants being co-owners were in joint possession; defendants 1 to 3 were managing the properties, and they agreed to render accounts to the plaintiff; a sum of Rs.4,000 was standing to the plaintiff's credit in the family accounts and was payable to her forthwith- it was an item of accounting by defendants 1 to 3; defendants 1 to 3 were trying and about to sell the properties without the plaintiff's consent for a song and complicate matters and multiply litigation; the plaintiff demanded partition and separate possession as also accounting from the defendants, but they were delaying the partition fraudulently with oblique and sinister motives; and, she sent a suit notice on 14.9.1981 to defendants 1 to 3, who received the same on 15.9.1981 did not send any reply.

(3.) ON issue No.1, the learned Judge found that the suit properties were the ancestral joint family properties of Kanagasabapathy Pillai, and that the plaintiff was entitled to 1.3rd share. ON issue No.2, the learned Judge held that the family arrangement set up by defendants 1 to 3 was true and as per the terms of the family arrangement the daughters of Kanagasabapathy Pillai had released their rights in favour of defendants 1 to 3. ON issue No.3, the learned Judge held that in Ex.B.21 the amount was reflected in the accounts of defendants 1 to 3 in the name of the plaintiff. However, in as much as the plaintiff had not demanded the money within three years after the death of Kanagasabapathy Pillai, the claim was barred by limitation. ON issue No.4, the learned Judge held that in as much as the plaintiff along with her sisters/defendants 4 to 10 had orally released their rights in favour of defendants 1 to 3, the plaintiff could not ask for accounts from defendants 1 to 3. ON issue No.5, the lower Court held that item 14 in the first schedule, and the second schedule properties had been sold for discharging the family debts and therefore those two items were not available for division. ON issue No.6, the learned Judge found that there were debts due from the family as would be evident from Ex.B.16/Day book. ON issue No.7, the sixth schedule property was an endowed property. ON issue No.8, the seventh schedule movables were non-existent. ON issue No.9, the figures given in schedules 8 and 9 were not correct. ON issue No.10 the learned Judge found that the plaintiff had not paid Court fee for return of Rs.4,000 and it had to be held that proper Court fee has not been paid. So holding, by judgment and decree, dated 19.7.1985, the lower Court dismissed the suit.