PERUMAL Vs. SENKAMALAM

JUDGEMENT

(1.) THE first defendant in O.S.No.105 of 1990 on the file of the Sub Court, Dharmapuri is the appellant.

(2.) RESPONDENTS 1 to 9 filed the above suit for partition of their 7/18 share and also for injunction in respect of C schedule property and the Trial Court passed the preliminary decree holding that respondents 1 to 9 are entitled to 7/18 share and in respect of C schedule property, there shall be an order of injunction restraining the appellant from interfering with the possession of C schedule property by respondents 1 to 8. Aggrieved by the same, this appeal is filed.

(3.) THE first defendant filed statement stating that the suit for partition is not maintainable. The first defendant admitted the relationship stated in the plaint and contended that Govinda Chetty executed a Will on 17.1.1975 and as per the Will, defendants 2 to 8 have no right or title over the suit properties and they are unnecessary parties. It is also stated that under the Will, the first defendant is also not entitled to claim any right over the properties. The first defendant also contended that as per the Will, the children of the first defendant are given certain items of properties and therefore, the suit is not maintainable. The plaintiffs also did not include all the properties of Govinda Chetty and they are living in a property belonging to Govinda Chetty by putting up construction and that property was not included in the suit and therefore, the suit is bad for non -joinder of necessary parties and also partial partition. The first defendant also denied the allegation that Govinda Chetty invested Rs.50/= he got under the release deed from his father and purchased the suit properties and also denied the allegation that Govinda Chetty was running Hotel business alongwith his two sons and from that, he purchased the suit properties. He denied that the first item of properties was purchased by Govinda Chetty in the name of his wife and he treated the same as his own property and items 2 and 3 were purchased by Govinda Chetty and was enjoying the same as the separate property. Therefore, the suit properties are the separate properties of Govinda Chetty and his sons are not entitled to any right over the same. The husband of the first plaintiff Arumugam was a useless person and he was not doing any business and in the year 1955, Govinda Chetty separated him from the family by giving him some cash he got by the sale of house property and thereafter, the plaintiffs are living separately and they never lived jointly with Govinda Chetty or with the appellant and they never joined in executing or discharging the mortgage and other loans and for the past 25 years, they never claimed any right or access over the properties and therefore, the suit is barred by limitation. After the separation of Arumugam, Govinda Chetty was taken care by the first defendant/appellant and also incurring debts by mortgage alongwith the son, the first defendant and they executed mortgages in favour of Ramanathan Chettiar on 24.4.1965 for a sum of Rs.5000/= and on 12.1.1972 for a sum of Rs.4000/=, in favour of Dr.Venkatesan, on 25.7.1970 for a sum of Rs.2000/= and on 16.10.1967 for a sum of Rs.5000/= and in favour of Karpagam alias Valliammal on 15.1.1972 for a sum of Rs.3000/= and executed pro notes in favour of Dr.Venkatesan on 31.1.1972 for a sum of Rs.5000/= and on 24.2.1975 executed a pro note in favour of Pakkiammal for a sum of Rs.2000/= and the total liability of Rs.26,000/= was paid by the first defendant and the mortgages were redeemed. The first defendant also denied the allegation that one year prior to his death, Govinda Chetty was not in a sound disposing state of mind. The properties were separate properties of Govinda Chetty and while he was in a sound disposing state of mind, on 17.1.1975, he executed a Will in the presence of witnesses and as per the Will, item 1 of properties was given to plaintiffs 4, 6 and 8 and item 2 was given to the children of the first defendant/appellant and item 3 was given to the first defendant/appellant and certain debts were also directed to be discharged by plaintiffs 4, 6 and 8 and till the discharge of those debts, the first item shall be in the possession of the second defendant and the Will came into effect after the death of Govinda Chetty and the children of Arumugam did not take any steps to discharge the loans and therefore, they are not entitled to claim any right in the first item of properties. In O.S.No.179 of 1976, the first defendant contested the suit by filing statement and to to defeat the rights of the sisters, it was stated in that statement that the properties are joint family properties and in that statement also, the Will was mentioned and the sisters viz., defendants 2 to 4 having realised that as per the Will, they cannot claim any right, let the suit dismissed for default. Therefore, the plaintiffs cannot claim any right over the properties even as per the Will and therefore, the suit for partition is liable to be dismissed.