SELLAYI AND ORS. Vs. VALLIAMMAL AND ORS.

JUDGEMENT

(1.) Defendants, who succeeded before the Trial Court but, failed in appeal, are the appellants in the second appeal. The case of the plaintiffs before the Trial Court was that the plaintiffs/married daughters, the deceased Ganesan and 6th defendant are the children of the first defendant and her husband, the deceased Palaniappa Gounder. The second defendant is the wife of the said deceased Ganesan and the defendants 3 to 5 are their children. The first defendant and her husband, during the life time of the latter, purchased immovable properties jointly out of their joint earnings and by partition deed dated 23.07.1999, they have been allotted "A" schedule property and they were in joint possession and enjoyment till the death of the latter. Thereafter, the first defendant was enjoying her undivided half share of the suit property. During the life time of Palaniappa Gounder, he and his wife/first defendant partitioned orally substantial portion of their properties retaining the first item of the suit property in her possession and occupation and had become divided from their sons, second defendant and the deceased Ganesan. In the suit properties, the said Palaniappa Gounder, during his life time, had put up pucca two-storied terraced building on the northern portion and both the first defendant/wife and himself were residing therein separately. After the death of Palaniappa Gounder, in the year 1987, first defendant continued to reside in it, as her sons were living separately with their respective families. Palaniappa Gounder, with the consent and knowledge of the first defendant and while in sound state of disposing mind, executed a Will dated 26.06.1987 in favour of their daughters/plaintiffs half portion of the suit property on the north together with building, well and electrical connections etc., bequeathing the same to them. The first defendant stood as one of the attestors. On the death of their father, the Will came into force and the defendants have taken possession and have become joint and absolute owners of the same. Since the other half portion of the suit property was in occupation and possession of their mother and she was residing in the terraced building, the plaintiffs had not disturbed her occupation of the said building. As the plaintiffs had been looking after the first defendant/mother to her satisfaction and happiness, she executed a registered irrevocable gift deed, dated 09.05.2000, transferring her common half share on the south of the suit property to the plaintiffs, which is shown as Item-2. Hence, the plaintiffs have been in the absolute, continuous, exclusive, peaceful and actual physical possession and enjoyment of the entire suit property. Knowing the execution of gift deed, the defendants by undue influence, coercion, forced the first defendant to execute a document of transfer touching the suit property to the detriment of the plaintiffs. On 19.04.2001, when the agricultural coolie workers engaged by the plaintiffs were working in the suit property, the defendants 2 to 6 drove them out of the land, threatening with dire consequences. Hence, the present suit had been filed.

(2.) The suit was resisted by the first defendant contending that the other defendants are helping this defendant in doing agricultural work in the suit property and when there arose misunderstanding between the defendants, this first defendant approached the plaintiffs and at that time, at the instigation of the plaintiffs, this defendant executed a registered document. After disposal of the suit filed by the defendants 2 to 5 against this defendant and the sixth defendant, in O.S. No. 661 of 2000 before the District Munsif Court, Salem, this defendant cancelled the registered document. Husband of the defendant had not executed any Will in favour of anybody. After the life time of this defendant and her husband, the defendants 2 to 6, viz., late Ganesan and Venkatesan, sons of this defendant are entitled to equal share.

(3.) Fourth defendant filed the Written Statement, which was adopted by the defendants 2, 3 and 5, contending that all the plaintiffs are not willing to prosecute the suit and it is only the 5th plaintiff alone very keen in prosecuting the suit against the defendants. The joint family properties were divided among Palaniappa Gounder, the father of the sixth defendant and late Ganesan on 23.07.1979 and in the said partition, the above said Palaniappa Gounder and the first defendant were given the suit properties, which are described in the 'A' schedule of the said partition, but they have to enjoy the suit properties till their life time and after their life time, the suit properties have to be enjoyed by the said Late Ganesan and the sixth defendant and their sons absolutely. Palaniappa Gounder died intestate. The two-storied building in the suit property was put up in the joint efforts of the above said Palaniappa Gounder and his two sons. The defendants 3, 4 and 6 are paying kist for the suit properties and are also paying the Electricity Bills. Palaniappa Gounder did not execute any Will in favour of the plaintiff. Taking advantage of the misunderstandings arose between the first defendant and other defendants, the plaintiffs influenced the first defendant and created a sham and nominal gift settlement deed on 09.05.2000, in their favour. Though it is styled as Gift Settlement, the recitals in the said deed will show, it is only a Will and the settlement deed was not given effect. The first defendant after knowing the cunningness and hostile attitude of the plaintiff, has cancelled the above said alleged gift settlement deed on 06.02.2001. In fact, the suit filed by the defendants 2 to 5 against the first and sixth defendants on the file of the District Munsif, Salem, in O.S. No. 661 of 2000 was not prosecuted and a joint memo was filed on 26.04.2000. The plaintiffs are making all sorts of efforts to enter into the possession of the suit properties on the strength of the alleged Gift Settlement Deed dated 09.05.2000. Since, the plaintiffs could not get into possession of the suit properties, they have come forward with this suit. The description of the property is misleading and though at one stage, the plaintiff have stated in paragraph-6 of the plaint that Item-2 is the suit property. The plaintiffs have not produced the alleged Will dated 26.06.1987. It is only the defendants who are in possession of the suit properties. In fact, the defendants are putting up a barbed wire fencing on the two sides by spending more than Rs. 50,000/-. Hence, they prayed for dismissal of the suit with costs.