IRUDAYAM AMMAL Vs. SALAYATH MARY

JUDGEMENT

(1.) DEFENDANTS 1 to 3 have preferred this appeal against the judgment and decree of the learned Subordinate Judge of Ramanathapuram decreeing, in favor of the plaintiff, partition and separate possession of one-fourth share in respect of certain items of properties set forth in Schedule A appended to the plaint as well as the claim for mesne profits from 12-3-1956. The plaintiff's suit in respect of other items in the A Schedule and in respect of the entire B Schedule properties as well as the plaintiff's claim for relief of accounting prior to 12-3-1956 have been dismissed. There is no cross-appeal in respect of the portion of the plaintiff's claim disallowed.

(2.) THE plaintiff is the daughter of one Susai Udayar; defendants 5 and 6 are the sisters of the plaintiff, being the other daughters of Susai Udayar aforesaid. The first defendant Irudayammal is the widow of one Arokia Udayar the son of Susai udayar. Defendants 2, 3 and 4 are the daughters of the first defendant and Arokia udayar aforesaid. The parties belong to Keeranur village in Ramanathapuram district and the father, Susai Udayar, left for Burma several decades ago and practically settled down there till the moment of his death in Burma in 1941. His wife the mother of the plaintiff also died in 1942. During the time he settled down in Burma, Susai Udayar acquired vast extents of paddy fields in Thamin Ahank kwin, Dedaye Township in Burma, Susai Udayar also acquired lands and houses in his native village.

(3.) IT is not in dispute that Susai Udayar his wife and his three daughters settled down in Burma; indeed the three daughters were born bred up in Burma and they were also married in Burma. The husbands of the fifth and the sixth defendants (the other two daughters of Susai Udayar) were staying in Burma, looking after the lands acquired by Susai Udayar, in Burma, Arokia Udayar, the son of Susai udayar, permanently stayed in India in the native village and used to visit Burma now and then. It was the husband of the fifth defendant (Irudayam) who was in main charge of the management of the properties in Burma and was completely assisting Susai Udayar. During the period of the war and when the conditions in burma were chaotic between 1941 to 1946, it was the husband of the fifth defendant who was staying in Burma and managing the properties after the death of Susai Udayar. In 1947-48, with considerable difficulty the fifth defendant and her husband and the plaintiff returned back to India. After return from Burma, the plaintiff was staying with her brother's wife, the first defendant. As the plaintiff had no child she was deeply attached to the fourth defendant Therasammal, treating her as her own daughter. Misunderstandings appear to have arisen between the plaintiff and the first defendant consequent upon certain marriage proposal of the third defendant the other daughter of the first defendant. The plaintiff issued a notice Ex. A-18 dated 12-3-1956, claiming a one-fourth share in the properties of Susai Udayar, in particular the properties in India, to which the first defendant sent a reply, Ex. A-20 dated 29-3-1956, in which the first defendant claimed that Susai Udayar had left behind a registered Will under which susai Udayar had given substantial landed properties in Burma to the three daughters, 60 acres to the plaintiff, 60 acres to the sixth defendant and 35 acres to the fifth defendant and that the rest of the properties of Susai Udayar i. e. , the properties in Burma as well as those in India, were bequeathed to Susai Udayar's son, Arokiam and that after the death of Susai Udayar in 1941, Arokiam and his three sisters were enjoying the properties as per the provisions of Will separately and in their own right and that the plaintiff was not entitled to any share in the properties in Burma. The plaintiff instituted the suit in forma pauperis in July 1956, claiming partition and separate possession of her one-fourth share in all the properties in India consisting of nanja lands and houses. Her case was that all the properties in the A Schedule, in respect of some of which title stood in the name of the father Susai Udayar, while in respect of others title stood in the name of the son, Arokiam all belonged to Susai. The plaintiff's case is that Arokiam had no independent means of his own and that it was only out of the income from the properties which Susai Udayar acquired that the entire A schedule and B schedule properties were acquired by Arokiam and all the items formed part of the estate of susai Udayar. The plaintiff also claimed an account of her share of the income from the properties from the death of Arokiam in 1946. The suit was contested by defendants 1 to 3. Defendants 4 to 6 remained exparte; they did not ask for partition and separate possession of their shares. The contentions of defendants 1 to 3 rested mainly upon Ex. B-4 the certified registration copy of the original Will left behind by Susai Udayar. The defendants' case was that Irudayam, the husband of the fifth defendant, is responsible for this litigation, that he had set up and instigated the plaintiff to file the suit and that the original Will which was in the house of Arokiam had been stealthily taken away by the plaintiff in collusion with Irudayam the husband of the fifth defendant along with other important documents and title deeds, and, taking advantage of the fact that the original Will is in their custody and control, the plaintiff had been instigated to institute the suit, seeing the handicap which defendants 1 to 3 were laboring under on account of their inability to produce the original Will. The learned Subordinate Judge upheld the plaintiff's claim in the view that the contesting defendants had not satisfactorily established the truth and genuineness of the Will of Susai Udayar dated 12-3-1941. He also held that the plaintiff had failed to prove that the other properties in the A schedule and the properties in the entire B schedule were acquired by Arokiam with the income from the properties of Susai Udayar. He granted a decree in favor of the plaintiff in respect of only items 5, 18 to 24, 26 and 34 to 54 in the A schedule and negatived the claim of the plaintiff in respect of the other items in the A schedule and the entirety of the properties in the B schedule. He also held that Arokiam had been in separate possession of those properties from the year 1941. He held that the plaintiff will be entitled to an account of the income in respect of A schedule items 5, 18 to 24, 26 and 34 to 54, only from 12-3-1956 the date when the plaintiff issued the notice to the defendants claiming her share. On the side of the plaintiff, the plaintiff was examined as P. W. 1 and two other witness. P. Ws. 2 and 3 who gave evidence to show that Arokiam acquired the other properties out of the income from the properties of Susai Udayar. On the side of the defendants, the first defendant was examined as D. W. 2 and three other witnesses. D. Ws. 1, 3 and 4 gave evidence about the family history about the Will and the other details. By a process of reasoning which is very unsatisfactory the learned Sub-ordinate Judge reached the conclusion that the contesting defendants had not made out the truth and genuineness of the Will though a certified registration copy of the Will had been produced. Hence the present appeal by the defeated defendants 1 to 3; as already observed there is no memorandum of cross-objections by the plaintiff in so far as the trial court disallowed the portion of her claim.