ALAMELU Vs. LAKSHMI

JUDGEMENT

(1.) Aggrieved against the concurrent findings of the courts below in dismissing the suit filed by them for partition, separate possession and for damages, the plaintiffs have preferred this second appeal.

(2.) The case of the plaintiffs before the Trial Court was that the suit properties were originally belonged to Hindu Joint Family consisting of Thotti, grand father of the plaintiffs, and his brother Pachamuthu. Pachamuthu died long back, without any legal heirs. Thotti had one son viz., Pachamuthu and three daughters, viz., Arundavam, Nadupillai and Anjalai. The plaintiffs are the descendants of Arundavam, Nadupillai and Anjalai. First defendant is the wife of Pachamuthu and daughter-in-law of Thotti. Third defendant is the brother of the first defendant. Thotti died 60 years prior to the suit and his wife Sellammal died 65 years prior to the suit. First defendant's husband Pachamuthu died intestate, 53 years prior to the suit, leaving behind the first defendant as his legal heir. After the demise of Pachamuthu, his wife/first defendant executed Bogyam in favour of one Rathina Padayachi, on 30.06.1944. Challenging the same, the daughters of Thotti filed a suit in O.S.No.323 of 1944 before the District Munsif Court, Vridhachalam, and in view of the endorsement made by both parties therein, the suit was decreed in favour of the daughters of Thotti. But they died intestate, leaving behind the plaintiffs as their respective legal heirs. The Bogyam executed by the first defendant was settled in the year 1947 itself. The daughters of Thotti are in joint possession of the suit properties and they shared the income derived from the properties along with the first defendant and they paid kist also. Since the plaintiffs are not interested in enjoying the properties along with first defendant, they filed this suit for partition and separate possession and also for damages.

(3.) The suit was resisted by the first defendant contending that the suit property originally belonged to her father-in-law Thotti. Thotti died in the year 1935 leaving behind his son Pachamuthu and three daughters. After the demise of Thotti, his son Pachamuthu enjoyed the property and he died in the year 1944 . Thereafter, the first defendant as legal heir of Pachamuthu, is in peaceful possession and enjoyment of the property continuously and uninterruptedly. Patta for the suit property also stands in the name of the first defendant. Hence, the first defendant is the absolute owner. Moreover, this defendant is in adverse possession of the suit property. Fifth item of the suit property was sold by the first and third defendants to the second defendant by way of a sale deed dated 13.11.1995 and the second defendant is in possession and enjoyment of the same, after mutating patta in his favour. With regard to other properties, excluding item-5, the first defendant executed a Will dated 12.12.1991 in favour of his brother/third defendant, and the same was registered on 26.12.1991. It is further contended by the first defendant that the income from the properties had not been shared by the plaintiffs or their predecessors at any point of time and the first defendant alone is enjoying the properties as the only legal heir of her husband. The predecessors of the plaintiffs had not claimed any right over the suit properties. Hence, the plaintiffs are barred from claiming right over the suit properties. It is also contended that as Thotti and his son Pachamuthu died prior to the Act 30/1956 came into force, the first defendant alone is the legal heir to the suit property and the plaintiffs cannot claim any right over the property. Hence, she prayed for dismissal of the suit.