ANTONY CHELLIAH Vs. MARIYAL

JUDGEMENT

(1.) THE first defendant in O.S.No.36 of 1977 on the file of the District Munsif s Court, Kovilpatti, is the appellant in the above second appeal. THE suit was filed for partition and separate possession of one-third share of the plaintiffs- respondents in the suit properties.

(2.) THE case of the plaintiff before the trial Court was that the suit properties belonged to the joint family of the plaintiffs husband, plaintiff and defendants 1 to 3, the same having been purchased with the ancestral funds and no one else has got any exclusive right over the same. It was stated that they were in joint enjoyment of the properties and subsequently in the year 1967, some misunderstandings arose between the members of the family and since the plaintiff has become old, defendants 2 and 3 executed a settlement deed in respect of their two-third share in the suit items 1 and 3 in favour of the plaintiff, that there was a family arrangement between the plaintiff and the first defendant in pursuance of a mediation arid it was decided that the first defendant should manage the family properties and pay two-third share of the income from the same to the plaintiff, which arrangement was accepted by the plaintiff and defendants 1 to 3. THE first defendant was said to have been paying two-third share of the income from the properties to the plaintiff upto January, 1975 and subsequently refused to do so, driving the plaintiff to the necessity of filing the suit for the reliefs as referred to supra. It was the case of the plaintiff that she was entitled to one-third share, which each of the defendants is entitled to 2/9th share.

(3.) ON the above claims and counter claims, the suit came to be tried and both parties adduced oral and documentary evidence. ON a consideration of the materials on record, the learned trial Judge by his judgment and decree dated 27.7.1978 held that the family arrangement pleaded by the plaintiff was not proved, that the Will projected by the first defendant was true and valid and therefore, the plaintiff was entitled to l/4th share in the suit items 2 and 4 and that the first defendant was entitled to suit items 1 and 3. A decree for partition and separate possession of the plaintiffs l/4th share in respect of plaint schedule items 2 and 4 alone was passed and in other respects, the suit was dismissed. Aggrieved, the plaintiff filed an appeal in A.S.No.182 of 1979 before the Sub-Court, Tuticorin. The learned Principal Subordinate Judge by his judgment and decree dated 25.8.1981 allowed the appeal by modifying the judgment of the learned trial Judge and passed a preliminary decree for partition and separate possession of the plaintiffs l/3rd share in all the suit items as prayed for, while relegating the claim for mesne profits to separate proceedings under Order 20, Rules 12 and 18 of the Code of Civil Procedure. The learned first appellate Judge was of the view that in the absence of probate of the Will, no rights can be claimed or countenanced on the basis of unprobated Will and consequently, the rights of parties must be decided on the basis that Maria Anthoni died intestate and the shares have to be worked out in terms of the Indian Succession Act, 1925. Aggrieved, the first defendant has filed the above appeal.