SUBBARAYA PILLAI ALIAS SUBBARAYA MANTHIRI Vs. LAKSHMIAMMAL

JUDGEMENT

(1.) THE facts of this case remind us in a way of the story of Abram and Sarai in the old testament. Sarai was the wife of Abram, but she was barren. She requested her husband to have a child through her Egyptian handmaid Hagar. He complied with the request and got a son named Ishmael. But, with the blessings of God, Sarai begot a son by name Isaac. THE Lord named Abram as Abraham and Sarai as Sarah. In the present case also, the first defendant, who is the first appellant herein married the first plaintiff Lakshmi Ammal, his sister's daughter in about 1947, THEy had no issue till about 1954. According to him, she requested him to marry again and have children. He agreed to that request and married another sister's daughter Munirathnammal, who is the second appellant second defendant. No doubt, the first plaintiff, who is the first respondent herein, denies that she wanted her husband to marry again. According to her, there was no such marriage and all on a sudden, her husband brought Munirathnammal to his house and she quarrelled with him and went out of her husband's house. But, in her evidence, she admits that all the members of the family including the plaintiffs and the defendants were living together as one family till about a year and half prior to the filing of the suit. THE evidence makes out that the second marriage was only with the consent of Lakshmi Ammal, the first plaintiff and not as pleaded by her.

(2.) THE first appellant executed a settlement deed Ex. B7 in the first instance on 2.6.1954 giving certain properties to the first plaintiff so that she could maintain herself in case the second wife's children neglect her. But she refused to accept the same as they were too small. He executed another settlement deed, Ex. B1 dated 5.7.1954 giving to her one half of Survey Number 226/4 of a total extent of 3.39 acres. Thus, she was given 1.69 -1/2 acres. She was also given a part of another property adjacent to suit item No. 9. THE remaining half of Survey No. 226/4 is item No. 1 in the plaint schedule.

(3.) TILL about 1978, there was no dispute between the parties and admittedly they were all living together as one family. Thereafter, quarrels arose which led to the filing of the present suit for partition and separate possession. The property which was given to the first plaintiff under the settlement Ex. B1 is not made subject matter of the suit. The remaining properties are shown in the schedule to the plaint. It is the case of the plaintiffs that all the properties are joint family properties in as much as items 1, 2 and 9 of plaint schedule are ancestral properties and items 3 to 8 are acquired with the ancestral nucleus. Schedule ?B? sets out outstandings due to the first defendant. The first plaintiff will be entitled to one half share in the property as her eldest son Rajendran died after the passing of the Hindu Succession Act. According to her, Rajendran's half share passed on to her as his only legal heir under the said Act. In the remaining half, which was owned by the first defendant, plaintiffs 2 and 3 had by birth 1/3rd share each. Thus, according to the plaintiffs, they are together entitled to 5/6th share in items 1 to 8 of the ?A? Schedule properties and 11/12th share in the 9th item. According to the plaint the family had only one half share in item No. 9 and the other half share was owned by the first plaintiff in her own right. The plaint also prays for a share in the outstandings and accounting of the income from the properties.