NAGALAKSHMI Vs. THIRUGNANASAMBANDAM ALIAS GNANAM

JUDGEMENT

(1.) Defendants 1 and 2 are appellants.

(2.) The averments in the plaint are as follows : The B Schedule proprties in the plaint belonged to one Subramania Vaithiyar who died intestate on 14-12-1970. Most of these properties were his ancestral properties and some were acquired ........ by him with the aid of the income from the ancestral properties. The plaintiff is the son of Subramania Vaithiyar through his first wife Sivakami. After the death of Sivakami. Subramania Vaithiyar married the third defendant as his second wife and fourth defendant is their daughter. Out of compulsion by his father, the plaintiff married the first defendant who is the sister's daughter of his father. The first defendant was leading a wayward life. She did not mend herself in spite of advice given by the plaintiff, Subramania Vaithiyar and his sister. The second defendant who is the son of the first defendant was not born to the plaintiff and the plaintiff disputes his legitimacy. The plaintiff left Mayavaram where he was residing with his father in 1958 and was employed as a Mechanical Fitter in Nagarjuna Sagar Project in Andhra Pradesh. Then he went to Mysore State and was employed as a Driver at Ambika Nagar in Mayood District. On seeing the advertisement in the Tamil Daily "Dhinathanthi" in 1970 that his father passed away, he wrote letters to his relatives and also to the first defendant. There was no reply. The plaintiff came to Mayavaram on 29-8-1980. His return was not relished by the defendants. The plaintiff was also beaten by defendants 2 and, 6 on 10-11-1980 and was driven out of the house. They have taken the baggage brought by him. A complaint lodged by him to the police at Mayavaram was of no avail. The plaintiff learnt that after the death of Subramania Vaithiyar in 1970 intestate, in the year 1975, defendants 3, 4 and 5 filed a suit against the defendents 1 and 2 for partition of the B schedule properties, in this suit in O.S. No. 75/ 1975, before the Subordinate Judge, Mayavaram and obtained a decree. In the final decree passed in January, 1979, the defendants 3 and 4 were allotted 1/3rd share and the defendants 1 and 2 were allotted 2/3. The said suit has been filed on the footing that the plaintiff is civilly dead on account of the fact that he was not heard of for more than seven years. The proceedings in O.S. No. 75/ 1975 will not affect the rights of the plaintiff. On the death of Subramania Vaithiyar intestate, the plaintiff will be entitled to one third of the half share of Subramania Vaithiyar since the entire properties which are ancestral belonged to Subramania Vaithiyar and the plaintiff. The defendants 1 and 2 have no manner of right whatsoever in the suit properties. The plaintiff must be deemed to be in joint possession of the B schedule properties along with defendants 3 and 4. He is entitled to partition and separate possession of 2/ 3rd share in the B schedule properties. In case the Court holds that the decree in O.S. No. 75/ 1975 is binding on the plaintiff, then also, the plaintiff is entitled to possession of the properties allotted to defendants 1 and 2 since the allotment in favour of defendants 1 and 2 was only in lieu of the plaintiff's share in the joint family properties. Defendants 5 to 9 are tenants. Hence the suit.

(3.) The first defendant has filed a written statement contending as follows: The plaintiff is not her husband. He is an impostor making a false personation as if he is the son of Subramania Vaithiyar and husband of the first defendant. The husband of the first defendant has named the child born to the first defendant-his wife as Panneerselvam. They were, living amicably till 1960. The husband of the first defendant viz., Thirugnanasambandam developed mental aberration and left the house and was not known for more than seven years from 1960 and he was presumed to be dead. A co-owner of Subramania Vaithiyar by name Purushothaman filed O.S. No. 2/ 1965 a Partition suit, and he has been allotted a share in the family property. He has squandered his entire share allotted to him. Defendants 3 and 4 obtained a decree in O.S. No. 75/ 1975 filed by them, for partition in respect of their share in the family property of Subramania Vaithiyar. Even though mesne profits amounting to Rupees 2977/- was directed to be paid by defendants 3 and 4 to defendants 1 and 2, the defendants 3 and 4 have not furnished required non judicial stamps for engrossing final decree regarding mesne profits. Purushothaman who had squandered all the properties allotted to him, has set up the plaintiff as if he is the son of Subramania Vaithiyar in order to black mail this defendant and her son. Since there is ill feeling between the defendants 1 and 2 on the one part and the defendants 3 and 4 on the other part, defendants 3 and 4 are conniving with him.