SAMINATHAN Vs. AROKIASAMY

JUDGEMENT

(1.) THE defendants 1 and 2 in the suit O.S.No.576/2004 filed by the respondent herein against the revision petitioners and three other persons Sahayamari, Anjalammal and Rosali, for the relief of partition and separate possession and also mesne profits, are the petitioners in the present civil revision petition.

(2.) THE first petitioner/first defendant Saminathan and the first respondent/plaintiff Arokiasamy are the sons of late Raphael. The second petitioner/second defendant Lucia Mary is the wife of the first petitioner/first defendant. The other defendants, namely defendants 3 to 5 are the daughters of late Raphael. It is an admitted fact that late Raphael died intestate in 1996 and his wife Arputha Mary died intestate in 1997. It is also an admitted fact that the parties being Christians, the properties left by Raphael and late Arputha Mary are governed by Indian Succession Act, 1925 regarding succession.

(3.) EVEN as per the plaint averments, items 1 to 6 in the plaint 'A' schedule were the properties that came to late Raphael in a partition that took place between himself and his brothers 47 years prior to filing of the suit. Item Nos.7 and 8 in the plaint 'A' schedule, according to the plaint averments, were the properties purchased by late Raphael. However, the first respondent/plaintiff Arockiasamy contended that the immovable properties shown as items 9 to 11 in the plaint 'A' schedule were also the properties purchased by the first petitioner/first defendant in the name of his wife, namely the second petitioner/second defendant, from out of the income derived from the other properties and that hence in the said items also the first respondent/plaintiff was entitled to half share. Thus, besides claiming the properties purchased in the name of the second petitioner to be the common property of the first petitioner/first defendant and the first respondent/plaintiff, he had claimed that the shares of the defendants 3 to 5 in the suit property had been released by them in an oral arrangement and that hence the first respondent/plaintiff was entitled to half share and the rest belonged to the first petitioner/first defendant. The plaintiff was not confident of sustaining his stand. The same was the reason why he incorporated a plea in the plaint that even if his claim of relinquishment by defendants 3 to