MURUGESAN Vs. POONGAVANAM

JUDGEMENT

(1.) The 1st defendant in O.S.No.140 of 2001 is the appellant. The above said suit was filed by the respondents 1 to 3 for partition of their 3/4th share in the suit properties.

(2.) The case of the respondents 1 to 3 is that the respondents 1 and 2 are sisters and the appellant and the 3rd respondent are brothers and they are the children of Manicka Gounder. The items 1 to 3 of the properties mentioned in the schedule of O.S.No.140 of 2001 originally belonged to the brother of Narayani Ammal, namely Arunachala Gounder and he gave those properties as 'Sridhana' to his sister Narayani Ammal, the mother of the appellant and the respondents 1 and 3 and she was enjoying the property and she died on 13.07.1973 intestate and even during her life time, the properties were mortgaged by the appellant, who happens to be the elder son in the family and he had no independent income and out of the income from items 1 to 3, he purchased the 4th item of the suit property and therefore, the 4th item also belongs to the family of Narayani Ammal. Therefore, the respondents 1 to 3 and the appellant are each entitled to 1/4th share and the respondents 1 to 3 together entitled to 3/4th share and filed the suit for 3/4th share in the suit properties.

(3.) The appellant admitted that items 1 to 3 originally belonged to the maternal Uncle, Arunachala Gounder and he had no issues and the appellant was brought up by him and was helping him in all his activities and considering that the appellant was residing with him and helping him, he orally gifted the 1st item of the property 40 years back to the appellant and the appellant was enjoying the property as absolute owner, paying kists and this was also known to the respondents 1 to 3 and the appellant also prescribed his right over his property over the statutory period and therefore, the respondents 1 to 3 have no title in respect of the 1st item of the suit property and the appellant further admitted that as the owner of the 1st item, he has got every right to sell the property and also sold the 1st item to the 5th respondent herein, who was the 2nd defendant and therefore, the respondents 1 to 3 cannot claim any right in the 1st item of the property. He further contended that the 2nd and 3rd items were given to his mother Narayani Ammal by Arunachala Gounder and Narayani Ammal died in the year 1982 and not on 13.07.1973 as contended by the respondents 1 to 3 and she executed a Will, dated 12.01.1978, by which she bequeathed 2nd and 3rd items of the suit property in favour of the appellant and therefore, under the Will executed by Narayani Ammal, he became the owner of the 2nd and 3rd items and the 4th item was purchased by him out of his self-earnings and it was his separate property and it was not purchased out of the income from the items 1 to 3 and therefore, the plaintiffs/respondents 1 to 3 are not entitled to any share in the property.