CHINNAPONNU Vs. KUPPUSAMY MOOPAR

JUDGEMENT

(1.) THIS appeal has been preferred against the decree and judgment passed in O.S.No.96 of 1986 on the file of the Sub-Court, Vriudhachalam.

(2.) THE averments in the plaint in brief are as follows:- THE plaintiffs have filed the suit claiming partition of their 11/18 share in the plaint schedule property and also for measne profits. THE entire plaint -A- & -B- schedule properties belong to the first plaintiff, first defendant and Ayyakannu, who is now no-more. THE entire plaint schedule property originally belonged to the first defendant and his brother Govinda Moopar and their father. THE plaint schedule property was allotted to the share of the first defendant in the partition entered into between the first defendant and his father Marimuthu Moopar and Govinda moopar, the brother of the first defendant. THE first plaintiff and deceased Ayyakannu are the sons of the first defendant. THE first plaintiff was born to the first defendant through his first wife. THE second defendant and deceased Ayyakannu were the children of the first defendant through his second wife viz. third defendant. THEy constitute a Hindu joint family and they were in possession and enjoyment of the plaint schedule property. THE second plaintiff is the wife of Ayyakannu and the said Ayyakannu died within one year after the marriage. THE third plaintiff is the son of the second plaintiff. THE entire plaint schedule property was managed by the first defendant as the kartha of the Hindu joint family. Due to the instigation of the third defendant his brother Kanthasamy was attempting to knock off the plaint schedule property. THE third defendant has failed to look after the affairs of the plaintiffs. THE first plaintiff, first defendant and deceased Ayyakannu were each entitled to 1/3 share in the plaint schedule property. After the death of Ayyakannu his 1/3 share devolved on his son third defendant. In the 1/3 share of Ayyakannu his mother(D3), wife(2nd plaintiff) and son(3rd plaintiff) are each entitledto 1/18 share. THE third plaintiff is entitled to 4/18 share. THE second and third plaintiffs are together entitled to 4/18 share. So totally the plainttiffs are entitled to 11/18 share in the suit property. THE second defendant is also entitled to get monthly maintenance of Rs.330/- from the first defendant. Hence the suit.

(3.) THE point:- 7(a) Admittedly the suit property belonged to the joint family of one Marimuthu Moopar. He had two sons by name Govinda Moopar and Kuppusamy Moopar(D1). THE said Kuppusamy Moopar had two wives by name Palaniammal and Ayyammal. Palaniammal is the second defendant in the suit. Palaniammal-s son is Peramana Moopar, who is the first plaintiff in the suit. THE second wife Ayyammal is the third defendant in the suit, who had a son viz. Ayyakannu, who is now no-more, whose wife is Chinnaponnu, who is the second plaintiff in the suit. Ayyakannu-s son through the second plaintiff is Kannan, who is the third plaintiff in the suit. Kuppusamy-s 1/3 share devolved on Paramana Moopar (1st plaintiff) and Ayyakannu who is now no-more. So Paramana Moopar(1st plaintiff) will be entitled to 1/3 share and Ayyakannu is entitled to 1/3 share and Kuppusamy(D1) is entitled to 1/3 share as the Hindu joint family-s members. Since Ayyakannu died, his 1/3 share devolved on his wife(2nd plaintiff), his son (3rd plaintiff) and his mother Ayyammal(D3) in equal share. After the death of Kuppusamy his 1/3 share devolved on his son Ayyakannu (1/6 share) and third plaintiff (1/6 share). So third defendant (Ayyammal) will be entitled to 1/3 share. THE second plaintiff will be entitled to 1/18 share and third plaintiff is entitled to 4/18 (1/6 + 1/18 = 4/18). So the plaintiffs are entitled to 11/18 share (1st plaintiff-s 6/18 share + 2nd plaintiff-s 1/18 share + 3rd plaintiff-s 4/18 share = 11/18 share). So the trial Court's decree in respect of plaintiff-s 11/18 share in the plaint -A- schedule property is correct and hence it is to be confirmed. 7(b) So far as the plaint -B- schedule property is concerned fourth defendant has purchased the same from the first defendant under Ex.B.1. THE learned trial Judge has given a finding that the fourth defendant had taken Ex.B.1-sale deed only to discharge the family debt from the first defendant. This was not controverted by the plaintiffs either by oral or documentary evidence. THEre is a clear finding at para 12 to 14 in the Judgment of the trial Judge to the effect that the fourth defendant is entitled to get the relief to which the first defendant is entitled to. THE first defendant-Kuppusamy is entitled to 1/3 share in the plaint schedule property. Since he is now no-more plaint -B- schedule property which is covered under Ex.B.1-sale deed in favour of the fourth defendant is to be allotted to the share of the first defendant and since the first defendant is dead plaint -B- schedule property under Ex.B.1 will go to the fourth defendant the subsequent purchaser under the first defendant. So the findings of the lower Court that the fourth defendant is not entitled to any relief cannot be sustained and the same is liable to be set aside and accordingly the same is hereby set aside. 7(c) THE plaint -C- schedule properties are immovable properties. THE findings of the trial Court is that the plaintiffs have failed to prove the availability of -C- schedule properties. But it is the definite case of the plaintiffs that -C- schedule properties are in existence. So in respect of -C- schedule properties at the time of final decree proceedings, through a Commissioner, the availability of -C- schedule properties, is to be ascertained and if -C- schedule properties are found to be available the plaintiffs are entitled to their due share in the -C- schedule properties also. Point is answered accordingly.