PRABAKARAN Vs. KUMARESAN

JUDGEMENT

(1.) This Appeal has been preferred challenging the Judgment and Decree of the learned II Additional District Judge, Tiruchirapalli, dtd. 18/1/2016 made in O.S. No. 105 of 2014.

(2.) The plaintiff is the appellant herein. The plaintiff has filed a suit for partition of suit scheduled properties. The case of the plaintiff is that the plaintiff and defendant are sons of Periyasamy and Iyyanimal; the suit property was acquired by the father of the plaintiff namely, Periyasamy; Periyasamy established a Stone Crusher Unit at Kizhakuvadi Village; he also purchased two house plots in the name of mother of the plaintiff Iyyammal on 9/9/1985; the defendant is the elder son of Periyasamy and he got his employment in Madurai and Karur; he never contributed any of his income to the family; Periyasamy died intestate on 14/11/2000 and after his death, the plaintiff, his mother and the defendant became his legal heirs and they divided the entire properties into three shares and prepared a partition chit dtd. 25/12/2000 to that effect; the plaintiff did not agree to the said partition arrangement; in the partition chit, only the mother of the plaintiff and defendant alone had affixed their signatures; finally, a registered partition deed has been executed on 20/6/2001; in the said partition deed, "A" Schedule properties were allotted to Iyyammaal, "B" Schedule properties were allotted to the defendant and "C" Schedule properties were allotted to the plaintiff; after partition, each sharer had taken their respective shares and in enjoyment of the same; around the year 2003, the defendant shifted his residence from Thuraiyur to Trichy; during that course, the defendant took his mother Iyyammal along with him; though, she was residing in Trichy, she used to visit the plaintiff, who is residing at Thuraiyur; the defendant wanted to grab the property of his mother and only with that view he took his mother to Trichy under the guise of maintaining her; in the year 2003, the defendant informed his mother that 5 acres in Kudalur Village was lying vacant and that can be divided into plots by getting a layout in the name "Periyasamy Nagar"; under the pretext of making arrangements for dividing plots and getting the approval, he advised his mother Iyyammal to execute a registered Power of Attorney in his favour; Iyyammal consented to execute a power deed; the defendant misused that opportunity and prepared a registered Will in respect of the suit properties and got the signature of Iyyammal; since she was illiterate, she didn't know to write or read; Iyyammal never intended to execute any Will in favour of the defendant alone by disinheriting the plaintiff, who is her younger son; the defendant played fraud on his mother; hence, the Will dtd. 2/3/2003 is a void one; Iyyammal died intestate on 6/5/2013; the plaintiff came to know recently that the patta for Gudalur property stands in the name of the defendant; only thereafter, he came to know about the fraudulent execution of the Will; the plaintiff issued a legal notice to the defendant on 15/5/2014; he also called upon the defendant to share the properties of the mother into two equal shares; the defendant sent a reply notice containing false and frivolous allegations; since the defendant did not come forward to participate in the partition, the plaintiff has filed a suit for claiming half share in the suit properties.

(3.) The defendant contested the suit by stating that the plaintiff was only four years at the time of purchase of the property by their father; the Crusher Unit at Thuraiyur was purchased by the father in the year 1976, when the plaintiff was 12 years old; the defendant completed his graduation in the year 1983 and joined duty in the year 1987; because of the ill-health of the father, the defendant resigned his job and was staying with the parents; during first week of November 2000, the plaintiff, defendant and their mother negotiated and arrived at a compromise with regard to the properties; the plaintiff himself handed over the stamp paper for executing the partition chit; even prior to the execution of partition chit dtd. 25/12/2000, the plaintiff was permitted to enjoy the Crusher Unit individually; the arrangement made by the parties towards share is identical in both the partition chit and the partition deed; the allegation that the defendant shifted his residence from Thuraiyur to Trichy during 2006 is false and his son was studying in Thuraiyur till 2005; the defendant shifted to Trichy only during 2005; the defendant was living with his parents even prior to the death of the father; no fraud or mis-representation committed by the defendant; it is false to state that the defendant defrauded his mother and got a Will from her on the guise of getting a power deed; as per the Will executed by the mother, the defendant is entitled to the suit property; hence the suit should be dismissed.