LAKSHMI Vs. SUSILA

JUDGEMENT

(1.) THIS appeal has been preferred against the decree and Judgment in O.S.No.85 of 1989 on the file of the Sub Court, Ariyalur.

(2.) THE averments in the plaint in brief are as follows: THE plaintiff, 5th defendant, and 6th defendant are the sisters of the deceased Manicka Udayar, who was the husband of the 1st defendant and the father of defendants 2 to 4. Admittedly, the father of the plaintiff, 5th defendant, 6th defendant and the deceased Manicka Udayar, was one Nallathambi Udayar. According to plaintiff, the plaint schedule properties are the ancestral properties of Nallathambi Udayar,the father, who died intestate in the year 1979 leavingbehind him,his wife,the first defendant's husband Manicka Udayar, and his sisters, the plaintiff,5th defendant and 6th defendant as his legal heirs. THE plaintiff's mother also died in the year 1986 Nallathambi Udayar had no necessity to borrow any debts. THEre was no debt to the Hindu Joint Family on the death of Nallathambi Udayar. THE plaintiff being an undivided member of the Joint Family of the deceased Nallathambi Udayar, is entitled to 1/4th share in all the suit properties on the death of her father along with defendants 1 to 6. Since the other defendants have not joined with the plaintiff, as co-owner, the plaintiff has come forward with the suit. Every year, plaintiff's brother Manicka Udayar used to give grains and cash for the maintenance of the plaintiff. THE plaintiff's brother Manicka Udayar also died intestate on 20.5.1989 leaving behind him, his wife and children, who are defendants 1 and 2 to 4 respectively. After the death of Manicka Udayar, the plaintiff demanded defendants 1 to 4 for a partition. When the plaintiff approached defendants 1 to 4 for partition, due to evil advice of some mischief mongers, defendants 1 to 4 denied the share of the plaintiff in the suit properties by saying that the deceased Manicka Udayar had executed certain documents. Defendants 1 to 4 would contend that on 17.5.1989, Manicka Udayar had executed a registered Will, bequeathing all the suit schedule properties in favour of defendants 1 to 4. THE plaintiff obtained a registration copy of the same on 21.6.1989. THE alleged Will was not duly executed by the deceased Manicka Udayar. THE alleged attestors and scribe of the said document are the henchmen of the 1st defendant. It ought to be a forged and concocted document. Even if, there is any Will, it will not bind the interest of the plaintiff and her sisters in respect of the suit schedule properties. Neither the plaintiff nor her sisters were parties to the said document. Only to deny, the plaintiff's due share in the plaint schedule properties, Defendants 1 to 4 have falsely created a right through the said Will. Defendants 1 to 4 refused to divide the suit property on 22.6.1989. THE plaintiff does not want to remain joint with other sharers any more. Hence, the plaintiff has filed the suit for partition of her 1/4th share in the suit properties.

(3.) POINT No.2: While answering Issue No.6, at paragraph 5 of its Judgment, the trial Court has clearly observed that under ExB2, dated 18.9.1973, Manicka Udayar had purchased 1.73 acres of land in S.No.138/19 which is part of plaint schedule Item No.5. Under Ex B2 dated 5.6.1974, Manicka Udayar had purchased 67 cents west of 1.34 cents in S.No.323/15. But that S.No.323/15 was not scheduled to the plaint. It is the claim of the first defendant as D.W.1 that Ex B2 relates to plaint Item No.15 to the plaint schedule property but the plaint Item No.15 relates to S.No.210/15 A measuring 0.27.0 hectares. So as far as Item No.15 is concerned, the first defendant has not proved that Manicka Udayar had taken a sale deed in respect of plaint Item No.15. Ex B3 dated 27.5.1953 relates to plaint schedule Item NO.22. There is an evidence let in by D.W.1 to the effect that only from out of the jewels belonging to her, her husband Manicka Udayar had purchased the properties under Exs B1 to B3. So in respect of plaint schedule part of Item No.5 and also in respect of plaint schedule Item No.22 , the plaintiff cannot claim any share on the ground that they are joint family properties. Nallathambi Udayar, the father of the plaintiff, died in the year 1979. Exs B1 to B3 were taken even before the death of Nallathambi Udayar. The fact that those Exs B1 to B3 documents were not taken in the name of Nallathambi Udayar but in the name of Manicka Udayar had itself will go to show that the properties purchased under Exs B1 to B3 are self acquired properties of Manicka Udayar. As far as Item No.15 is concerned, Ex B2 does not relate to the plaint schedule Item No.15, consist of S.No.210/15 A measuring 0.27.0 hectares. So the plaintiff cannot get any share in part of Item No.5 and Item No.22 to the plaint schedule property. But the plaintiff is entitled to her due share in plaint schedule Item No.15 ie., S.No.210/15 A measuring 0.27.0 hectares,since Ex B2 does not relate to the said plaint schedule property Item No.15 relating to S.No.210/15A. Hence I hold on the point No.2 that the plaintiff is entitled to a preliminary decree for partition for her due share which is to be declared in point No.1 hereunder in respect of plaint Item No.15 to the suit property and other properties except in part of item No.5 and item No.22 to the plaint schedule properties.