KAMALAMBAL Vs. BALA

JUDGEMENT

(1.) THE 3rd defendant and the legal heirs of the 2nd defendant are the appellants. The plaintiffs/respondents 1 to 3 filed the suit in O.S.No.1107 of 1996 on the file of the District Munsif Court, Chengam for partition of their 3/5th share in the suit properties.

(2.) THE case of the plaintiffs/respondents 1 to 3 was that the suit properties originally belonged to Narayanaswamy Naidu, the father of the plaintiffs/respondents 1 to 3, the husband of the 4th respondent and the father of the deceased 2nd defendant. The first appellant was the husband of the deceased 2nd defendant and the appellants 2 and 3 are the children of the first appellant through the deceased 2nd defendant. According to the plaintiffs/respondents 1 to 3, Narayanaswamy Naidu died intestate on 11.2.1968 and the properties were managed by the 4th respondent, who is their mother and the deceased 2nd defendant and her husband, the first appellant/3rd defendant and they were giving the share of the plaintiffs/respondents 1 to 3 till 1 -1/2 years prior to the filing of the suit and thereafter, they refused to give and denied the title of the plaintiffs/respondents 1 to 3 in the properties stating that Narayanaswamy Naidu left a Will, dated 12.01.1968 in favour of his daughter, the deceased 2nd defendant and her husband, the first appellant and thereafter, O.S.No.226 of 1977 was filed by the defendants 2 and 3 and others and in that suit, a compromise was entered into between the 4th respondent and the first appellant/3rd defendant and the 2nd defendant and as per the compromise decree, the 4th respondent was given half share in the properties and therefore, the plaintiff/respondents 1 to 3 have no right over the properties. The plaintiffs/respondents 1 to 3 denied the execution of the Will by Narayanaswamy Naidu and contended that the Will must be a fraudulent one or must have been procured by undue -influence or fraud and they are not bound by the decree passed in O.S.No.226 of 1977, as they were not parties to the suit and as the children of Narayanaswamy Naidu, they are entitled to 3/5th share and the 4th respondent and the deceased 2nd defendant are each entitled to 1/5th share and therefore, filed a suit for partition.

(3.) THE defendants 2 and 3 contested the suit stating that Narayanaswamy Naidu had two wives and the deceased 2nd defendant was the daughter through his first wife Rangammal and the 3rd defendant was her husband and the first defendant/4th respondent herein was the 2nd wife of Narayanaswamy Naidu and through her, the plaintiffs were born and the properties were the separate properties of Narayanaswamy Naidu and while he was in a sound disposing state of mind executed a Will, dated 12.01.1968 in favour of the defendants 2 and 3 and therefore, they became the owners of the properties and the Will was a registered one and the defendants 2 and 3, namely the first appellant and his wife, the deceased 2nd defendant filed O.S.No.226 of 1977 for declaration that they are the owners of the properties and for delivery of possession from the 4th respondent herein and two others and in that suit, a compromise was entered into by which the 4th respondent was given half share and the defendants 2 and 3 were given half share and in that suit, the Will was produced and marked as Ex.A1 and the mother of the plaintiff/respondents 1 to 3, namely the 4th respondent herein was a party to the compromise and she accepted the Will in that suit and therefore, the plaintiffs/respondents 1 to 3 have no right over the properties.