RAJU NAICKER Vs. EKANATHAN

JUDGEMENT

(1.) This Letters Patent Appeal is preferred against the judgment of learned Single Judge rendered in A.S. No. 44 of 1983 dated 17-3-1998. Learned single Judge by the Judgment allowed the appeal preferred against the judgment and decree in O.S. No. 5154 of 1974 on the file of City Civil Court, Chennai dated 15-7-1982. Against the judgment of the learned single Judge, the plaintiffs in the suit have preferred this appeal. For the sake of convenience, the parties are hereinafter referred to as shown in the plaint. (Contd. on Col. 2)

(2.) It would be convenient to refer to an earlier judicial proceeding in which the suit property (Door No. 31, Sami Chetty Street. Komlaswarpet bearing O.S. No. 148. R.S. No. 1168, C.C. No. 440 within the sub-registration district of West Madras and registration district of Madras, measuring an extent of about I ground 946 sq. ft.) was the subject matter of the suit. We also refer to the genealogy of one Chidambara Naicker as parties in the present suit as well as in the earlier suit are the descendants of Chidambara Naicker and Chinnammal. The family tree is as under : (See Family Tree below) The property originally belonged to Chidambara Naicker. Chidambara Naicker seems to have died prior to the year 1920 itself, and there is no evidence regarding the exact date of his death. However, it is seen from the document of sale dated 17-3-1920 (Ex. B-28), Chinnammal wife of Chidambara Naicker sold the property in favour of one Sabapathy Naicker. Sabapathy Naicker, purchaser of the suit property filed a suit in O.S. No. 415 of 1920 on the file of City Civil Court. Chennai for delivery of possession and for arrears of rent and that suit was also decreed on 23-11-1921 (Ex.B-30), However, it is not clear that Sabapathy Naicker <IMG>judgement_465_air(mad)_2004_465.jpg</IMG> had executed the decree obtained by him in O.S. No. 415 of 1920.

(3.) Kuppammal, the plaintiff in O.S. No. 293 of 1960 on the file of City Civil Court, Chennai (hereinafter referred to as 1960 suit') filed a suit for declaration claiming her right in the suit property on the basis that Chidambara Naicker and Chinnammal had four daughters, namely, Alamelu ammal, Rukmani ammal, Molagammal and Varadammal and Kuppammal, the plaintiff in the 1960 suit is the daughter of Alamelu ammal. She has stated that her mother predeceased Chidambara Naicker, who is her maternal grandfather and her father Kolandavelu Naicker married her maternal aunt, Rukmani ammal and she was brought up by her grandmother, Chinnammal and Rukmani ammal, her maternal aunt and Varadammal had no issues and the other daughter of Chidambara Naicker and Chinnammal, namely, Molagammal had a daughter, Jayalakshmi and she was married to one Janakiraman and the defendants 2 and 3 in the present suit are the sons of Jayalakshmi and Janakiraman. Kuppammal, plaintiff in the 1960 suit claimed that Rukmani ammal and Varadammal had no issues and Varadammal died on 13-11-1959 and she was the sister's daughter of Varadammal and she was the surviving heir of the deceased Chidambara Naicker and the defendants 2 and 3 who are also defendants 9 and 10 in the 1960 suit were removed by one degree from her as they are sons of granddaughter of Chidambara Naicker, Kuppammal, plaintiff in the 1960 suit instituted the suit for declaration against one Krishnan on the ground that he was claiming title to the property and she had also impleaded the tenants in various portions of the suit property as they had stated that they would not pay rent to Kuppammal unless she established her title in the Court of law. In the plaint filed in the 1960 suit, Kuppammal has stated that she was in possession of the suit property and Krishnan, first defendant in that suit, claiming right to the property was collecting rent. During the pendency of the 1960 suit, the defendants 2 and 3 herein who were the minors, were impleaded as parties to the suit in LA. No. 883 of 1960 by order dated 25-4-1961 and they were represented by their father, Janakiraman. The defence raised by the defendants 2 and 3 herein who are the defendants 9 and 10 in the 1960 suit was that Chidambara Naicker had no daughter by name, Alamelu ammal at all. Their case was that Chidambara Naicker had only three daughters and not four daughters as alleged in the plaint. They disputed the relationship of the plaintiff Kuppammal in the family of Chidambara Naicker on the ground that she was a stranger to the family.