D. VENKATAPATHY Vs. D. JEGAPATHY

JUDGEMENT

(1.) The suit in O.S.No.409 of 1999 was originally filed before the learned Subordinate Judge, Vellore, by the sole respondent herein. The appellant is the 1st defendant. On transfer to the file of the learned Additional District Munsif, Vellore, the said suit was renumbered as O.S.No.650 of 2004. The respondent herein filed the above said suit for partition of the suit properties and for allotment of 1/3rd share to him. By decree and judgment dated 26.07.2010, the trial court dismissed the suit. As against the same, the plaintiff/respondent herein filed an appeal in A.S.No.115 of 2011 before the learned Subordinate Judge, Vellore, as against the 1st defendant alone and he had given up his claim as against the defendants 2 to 4. By decree and judgment dated 21.09.2012, the first appellate court allowed the appeal, set aside the decree and judgment of the trial court and passed a preliminary decree allotting 1/3rd share to the plaintiff/respondent herein. Challenging the same, the 1st defendant is now before this court with the present second appeal.

(2.) The case of the plaintiff in brief is as follows:- The suit properties were originally owned by one Sri.Duraisamy Naidu. Sri.Duraisamy Naidu is none else than the father of the plaintiff, 1st defendant and one Sri.Sripathi. The defendants 2 and 3 are the children of Sri.Sripathi, who is no more. During his life time, Sri.Duraisamy Naidu had executed a settlement deed dated 27.11.1957 (Ex.A.1) in favour of his wife Mrs.Sarojini Ammal. As per the terms of settlement deed Mrs.Sarojini Ammal was given only life estate and after her demise, the properties should be equally inherited by the plaintiff, the 1st defendant and Sripathy. The said settlement deed was acted upon and Mrs.Sarojini Ammal was in possession and enjoyment of the suit property till her demise on 11.04.1983. After the demise, as per the terms of the settlement deed, the plaintiff and the 1st defendant are entitled for 1/3rd share each and the defendants 2 and 3 are entitled for 1/3rd share together. Since the defendants did not come forward to partition the suit property, the plaintiff filed the present suit for partition.

(3.) The 1st defendant /appellant herein contested the suit claiming absolute title for the suit property. According to him, the settlement deed dated 27.11.1957 was subsequently cancelled by Sri.Duraisamy Naidu by means of a registered cancellation deed dated 27.01.1979. It is is further case that the settlement deed under Ex.A.1 was never acted upon. Thus, according to the 1st defendant Sri.Duraisamy Naidu continued to be the owner of the suit property. In such capacity, on 21.08.1983, he had executed a Will which was registered on the same day on the file of the Sub Registrar at Vellore. Sri.Duraisamy Naidu, thereafter, died on 20.12.1984. As per the terms of the Will, the entire suit property should go to the 1st defendant. Accordingly, by means of testamentary succession, the 1st defendant has become the absolute owner of the suit property over which neither the plaintiff nor the other defendants have got any right whatsoever. Thus, the 1st defendant claimed that the suit property is not liable for partition at all.