T.SHANMUGASUNDARAM Vs. PALANIAMMAL

JUDGEMENT

(1.) Aggrieved over the judgment and decree of the trial Court granting preliminary decree for partition and allotting 1/4th share each to three plaintiffs and the first defendant, the present appeal came to be filed by the first defendant.

(2.) The parties are referred to by their respective ranks before the trial Court.

(3.) The suit properties originally belonged to one Thangaraj. First plaintiff is the wife and second and third plaintiffs are son and daughter respectively. The first defendant is the younger son of said Thangaraj. Second defendant is the wife of the first defendant. The suit properties are the self-acquired properties of Thangaraj. The said Thangaraj was running a sole proprietary concern in Item No.1 by name "TRS Enterprises" and he carried on the said business until his life time. Though the second plaintiff was associated with the business of his father, from the year 1999, he had his own business and was residing separately with his family since 2003. The said Thangaraj and his wife, namely the first plaintiff, were living in Item No.1 of the suit property. The third plaintiff is the only daughter of deceased Thangaraj. It is the case of the plaintiffs that the first defendant developed contact and intimacy with the second defendant, who belongs to Muslim community and ultimately married her without the knowledge of his parents and other family members and was residing separately. According to the plaintiffs, taking advantage of the sympathetic attitude of his mother, the first defendant began to reside in item No.1 of the property along with his parents. It is the case of the plaintiffs that after the death of deceased Thangaraj intestate, the properties devolved on the plaintiffs and the first defendant in equal shares. After the 16th day ceremony of said Thangaraj, the first defendant showed a xerox copy of a Will dtd. 7/2/2011 said to have been executed by the deceased Thangaraj and proclaimed that his father has bequeathed all the properties to him. According to the plaintiffs, the said Will is a fabricated and concocted one and brought out by the first defendant incorporating the recitals to suit his own convenience in connivance with his allies. There was no reason for the deceased Thangaraj to disinherit his wife, who is a heart patient, his elder son, who is a blood cancer patient and his daughter and recitals in the alleged Will by themselves throw a lot of doubt about its genuineness and veracity of the same. The recitals in the alleged Will shows as if provisions made in the Will for Plaintiffs 1 and 3, but they are in an unrealistic and unworkable manner. The alleged Will was an unregistered document and does not even contain a clause for revocation, which is the basic characteristic of a Will. The description of properties in the Will particularly the Item No.2 of the property is incorrect and even during his life time, the deceased Thangaraj had executed a gift deed in favour of Panchayat transferring 89 square meters of land, but the alleged Will mentions the total extent of 8.33 acres as an item of bequest. That itself shows that the Will is a created one. Disputing the alleged Will, the plaintiffs have filed a suit claiming a share in the suit properties.