N NAGALAKSHMI Vs. THANGARAJ

JUDGEMENT

(1.) The present Second Appeal has been filed by the appellants/unsuccessful defendants, challenging the Judgment and decree, dated 02.02.2006, passed by the I Additional Sub Court, Erode, in A.S. No.4 of 2005, whereby, the judgment and decree passed in favour of the plaintiffs by the II Additional District Munsif Court, Erode, in O.S. No.1109 of 1995 on 01.03.2004, was confirmed.

(2.) The father of R1 herein/late K.V.Rangasamy filed the suit in O.S. No.1109 of 1995 before the trial court, seeking to pass a decree, directing the defendants to vacate and deliver vacant possession of the suit property to the plaintiff within the date that would be fixed by the court and, in default thereof, directing delivery of possession of the suit property to the plaintiff through the process of court, and also for costs, by pleading thus:

(3.) Opposing the prayer made by the plaintiff, a detailed written statement was filed by the first defendant and the same was adopted by defendants 2 and 3. The defendants jointly took a stand that the suit property at Door No.177 did not belong to Venkatachala Mudaliar from whom the first plaintiff is said to have got the property by way of Ex.A1 Settlement Deed. According to the defendants, the suit property was acquired by joint exertions of all the members of the joint family consisting of Venkatachala Mudaliar and his sons - the first plaintiff, Palanisamy, Vaiyapuri and Thangavelu and thereby, the suit property was treated only as a joint family property. Venkatachala Mudaliar being the 'Karta' of the joint family, all the properties were purchased in his name, however, the same were treated as joint family properties. Venkatachala Mudaliar himself divided the joint family properties and started giving the respective shares to each of his sons as and when they attained proper age. Accordingly, when Venkatachala Mudaliar gave the share of the first plaintiff, by executing the settlement deed, dated 23.11.1949, the said deed was, in fact, a part of the partition arrangement effected by Venkatachala Mudaliar. Therefore, the property covered under the settlement deed dated 23.11.1949 is not the separate property of the plaintiff but it is a part of the joint family properties. In other words, even the properties covered under the settlement deed are also properties of the first plaintiff and his two sons viz., Nagaraj-the husband of the 1st defendant and Thangaraj-2nd plaintiff. On that basis, it was further stated that the first plaintiff and his two sons are entitled to 1/3rd share in the properties covered by the settlement deed under Ex.A1 dated 23.11.1949. After the demise of Nagaraj, his legal heirs/defendants-1 to 3 succeed to his 1/3rd share in the suit property. Since there is no division by metes and bounds, defendants-1 to 3 are in possession and enjoyment of the entire portion bearing Door No.176 as co-sharers while the plaintiffs are in possession and enjoyment of the property at Door No.177. As there are two separate entrances to Door Nos.176 and 177, both parties have separate entry to reach their respective properties. It was stated that never the defendants created any trouble or posed threat to the plaintiff. In respect of non-issuance of reply to the pre-suit notice received from the plaintiff, it is stated that since the defendants desired to settle the dispute amicably through a panchayat, they refrained from issuing any reply as they thought any endeavour to reply would spoil the atmosphere for an amicable settlement. However, as the plaintiff and his other son Thangaraj were not amenable for a peaceful settlement so as to divide the family properties out of court amicably, the defendants reserved their right to file a suit for partition if necessary. In these circumstances, it was pleaded that the plaintiffs are not entitled to file a suit for possession and, at best, their only remedy would be to file a suit for partition of the entire joint family properties, because, the plaintiffs had no exclusive title whatsoever to the suit property and they are not in possession of the suit property. Further, it was stated that occupation by defendants 1 to 3 of the suit building bearing Door No.176 is absolutely lawful and that the defendants are not in possession of any part of the building bearing Door No.177. The suit is misconceived and wholly unsustainable. The 2nd plaintiff impleaded after the demise of the first plaintiff traces his right from the Will/Ex.A5 dated 17.12.1993 said to have been executed by his father/1st plaintiff bequeathing the suit property in his favour. In respect of the same, defendant No.2 filed an additional written statement wherein, the execution of the Will was stoutly denied. Interestingly, it is further stated that the first plaintiff was suffering from acute diabetics, high blood pressure and breathing trouble, thereby, he did not possess balanced mind and he used to behave rudely and abnormally. During 1993, his physical and mental condition had become so fragile that he could not even act independently. Taking advantage of his poor mental condition, the 2nd plaintiff, in an effort to grab all the family properties to the exclusion of the defendants, by playing fraud, created the will/Ex.A5.