INDIRANI AMMAL Vs. E CHANDRA

JUDGEMENT

(1.) THE plaintiff Indirani Ammal, who has filed a suit for partition, since she is not satisfied with the decree passed partially has filed this appeal.

(2.) THE plaintiff filed the suit alleging as follows: THE plaintiff is the daughter of one Thayarammal by her husband Ezhumalai. About 25 years ago Thayarammal left her husband and came to live with one P.V.Gopalan Nair as his mistress. THE plaintiff was brought up by them and she was living with them till her marriage. First defendant was born to Thayarammal and Gopalan Nair. Plaint Schedule item 1 house property was owned by the plaintiffs mother Thayarammal and Gopalan Nair which has been purchased by them under Ex.A-1 Sale Deed, dated 19.4.1974. THE plaint item 2 land measuring 1.09 acres was owned and possessed by Thayarammal and first defendant which has been purchased by them under Ex.A-2 Registered Sale Deed dated 27.1.1972. Thayarammal was thus entitled to a moiety in each of the said properties. Thayarammal pre-deceased Gopalan Nair on 10.10.1975. She left behind the plaintiff and the first defendant as her heirs. Gopalan Nair was not married Thayarammal and she was only her paramour. He also died on 1,8.1978. Both the plaintiff and the first defendant as the heirs of Thayarammal inherited her right to moiety in both the properties. THE plaintiff became entitled to l/4th share in the said properties and the first defendant became entitled to l/4th share in the first item and 3/4th share in second item. Thayarammal had left a fixed deposit amount of Rs.10,000, viz., THE third item in the plaint schedule with the second defendant Bank. THE plaintiff became entitled to a moiety in this deposit amount also. While so the plaintiff learnt that Gopalan Nair had executed a settlement deed in favour of the first defendant on 24.10.1975 purporting to settle the entire first item house. Since Gopalan Nair was entitled to only a moiety in the said property he was not competent to execute a settlement deed in respect of the other moiety which was owned and possessed, by Thayarammal. THE settlement deed is void in so far as the plaintiff's l/4th share is concerned. Since it is no longer possible to be a co-owner with the first defendant the plaintiff had to file a suit for partition of her shares in the three items of properties. She has also prayed for mesne profits in respect of the first item of properties for the past three years.

(3.) THE facts not disputed are, the plaintiff was born to Thayarammal through her father Ezhumalai and when she was an infant (3 years) Thayarammal left Ezhumalai with the plaintiff came to Gopalan Nair and lived with him as a wife. THEre is no evidence as to whether Ezhumalai was heard thereafter excepting that of the plaintiff as P.W.I that she had seen Ezhumalai in her 10th year. It is not in dispute that Gopalan Nair in a lottery got a sum of Rs.10,00,000 and with that sum he purchased properties both in his name and in the name of Thayarammal and in the joint names of both of them.