TMT.ESTHER JASPHER SWAMINATHAN Vs. DHANABAGIAM FRANCIS

JUDGEMENT

(1.) The defendants 6 to 9 in O.S.No.751 of 1985 on the file of the Sub Court, Salem, are the appellants in A.S.No.517 of 1993 and the defendants 10 to 12 in the same suit are the appellants in A.S.No.685 of 1993. The plaintiff filed a suit for partition of 1/7 share in the suit properties and the suit was decreed as prayed for and aggrieved by the same, these two appeals were filed.

(2.) Though there is no appearance for the appellants in A.S.No.685 of 1993, as that appeal was also arising out of the same suit in A.S.No.751 of 1985 and the other appeal was filed by the defendants 6 to 9, both the appeals were heard together and this common judgment is pronounced.

(3.) The case of the plaintiff is as follows: The plaintiff, defendants 1 to 5 and one R.P.David are the children of Sathyanathan and Gnanambal and the properties were self -acquired properties of Sathyanathan and he was also having partnership business with his son R.P.David and he was also doing business in transport, in which, all his children were partners. The plaintiff executed a power of attorney in favour of her father as she was residing at Chennai and after the death of her father, she also executed a power in favour of her brother R.P.David. Their father Sathyanathan died on 05.05.1974 intestate leaving behind his widow Gnanambal and his seven children, namely, plaintiff, defendants 1 to 5 and R.P.David. R.P.David and the fifth defendant with the connivance of family friend Ramachandran created an oral Will said to have been expressed by late Sathyanathan on 02.05.1974 in the presence of the plaintiff and others and also in the presence of family lawyer, S.V.Anandapadmanaban, which was reduced into writing later, and the plaintiff and other children signed the document admitting that wish expressed by late Sathyanathan of his intention to give all his properties to his grandsons through his two sons, namely, defendant 5 and R.P.David and also claimed to have registered the family arrangement and the plaintiff came to know about the registration of family arrangement only four months prior to the filing of the suit and the document described as family arrangement was not a valid document and Sathyanathan died intestate and he did not express any wish to give his properties in favour of his grandsons through his sons and after the death of Sathyanathan, fifth respondent and R.P.David were in the management of the properties. As per the Indian Succession Act, Gnanambal, widow of Sathyanathan, was entitled to 1/3 share and other children are entitled to 2/3 share and Gnanambal also died on 30.12.1981 intestate and therefore, her 1/3 share devolved upon her children and therefore, the plaintiff is entitled to 1/7th share in the suit properties. R.P.David, the brother of the plaintiff, was in management and he died on 13.04.1985 and his legal heirs are defendants 10 to 12. After the death of R.P.David, misunderstanding arose between the parties and some properties were transferred in the names of the defendants 6 to 9 without the knowledge of the plaintiff and the plaintiff, being the co -owner, is entitled to 1/7th share and the transfer of properties in the names of the defendants 6 to 9 and 10 to 12 are not binding on the plaintiff and therefore, the suit was filed by the plaintiff for the partition of 1/7th share in the suit properties.