SUBBARAYA GOUNDER Vs. PALANISAMI GOUNDER

JUDGEMENT

(1.) A.S. No; 676 of 1988 is preferred against the judgment and decree dated 7.4.1986 passed in O.S.No: 3 of 1983 by the first defendant therein and Transfer A.S.No; 754 of 1992 is preferred against the judgment and decree dt. 7.4.86 passed in O.S. No: 23 of 1983 both by the Court of Subordinate Judge, Dharapuram.

(2.) The plaint allegations in O.S. No: 3 of 1983 are as follows: 'A' Schedule properties are the ancestral properties of Nachimuthu Gounder and his three sons namely Periasami Gounder, Rangasami Gounder and Laxmana Gounder; that while Nachimuthu Gounder died long ago and his second son Rangasami Gounder died 50 years ago without issue; and therefore, the "A" schedule properties were inherited by Periasamy Gounder and Laxmana Gounder by survivorship; that Periasamy Gounder was acting as manager of the joint family; that while in management, he acquired some properties in his name for and on behalf of the joint family from and out of the income derived from the joint family properties; that the plaintiff and the first defendant are the sons of Laxmana Gounder; that Periasamy Gounder had no issues; that in or about 1962 Periasamy Gounder effected a family arrangement whereby the "A" Schedule properties to the plaint an heads of cattle were allotted to the plaintiff and the first defendant to be enjoyed by them in equal moieties; that it was understood that the plaintiff and the first defendant should effect permanent partition in equal moieties after the lifetime of Periasamy Gounder and Laxmana Gounder and plaintiff should maintain Periasamy Gounder and the first defendant should maintain Laxmana Gounder; that Laxmana gounder predeceased Periasami Gounder and Periasamy Gounder died in January 1995; that when Periasami Gounder was in unsound state of mind, the first defendant appeared to have fraudulently acquired a Will in his favour; that in O.S. No: 1 of 1976, on the file of the Court of District Munsif, the genuineness and the validity of the Will were questioned by the plaintiff, as there was no necessity for Periasamy gounder to execute any Will at all; that the alleged Will dated 17.1.1975 is a bogus one brought about by the plaintiff to deprive the first defendant of his legitimate right in 'A' Schedule properties.

(3.) The further averments of the plaint are that one Chinnasamy Gounder had two wives Angaiammal and Nachiammal who are the aunt and sisters of the plaintiff and the first defendant; that the said Chinnasamy Gounder bequeathed an undivided half share in the properties belonging to him and his brother in favour of his two wives under a registered Will dt. 29.8.1947; that after his death, his two wives became entitled to half share each; that on 27.6.1949, the two wives were allotted separate properties as their own; that Angaiammal and Nachiammal executed a will bequeathing their respective shares in the properties in favour of the plaintiff and the first defendant; that Angaiammal died on 19.12.1959 and the common half share belonging to Angaiammal is given in the "B" Schedule and the plaintiff and the first defendant are each entitled to 1/4th share in those properties; that the plaintiff and the defendants 1 and 2 in their individual right conveyed their respective shares in some of the properties under the Will by a sale deed dated 17.9.1964 and the remaining properties are described in "B" Schedule and they are enjoyed by the plaintiff and the defendants 1 and 2 in common; that the "A" and "B" Schedule properties are enjoyed by the parties for convenience and enjoyment without any permanent partition and hence the plaintiff has filed the suit for partition directing the division of items 1 to 6 and 8 into four equal shares and item 1 to 6 and 7 of 'B' schedule into 4 equal shares and item 6 into 32 equal shares by metes and bounds with reference to good and bad soil and allot one such share in all items to plaintiff and he be put in possession of the same and for costs.