N RAMACHANDRAN Vs. E VARADARAJAN

JUDGEMENT

(1.) THE defendant in the court below is the appellant. THE plaintiffs have filed a suit for partition claiming 1/2 share in the suit property bearing Old No. 2 New No. 2/1 and 2/2 Sheruffudin Sehib Street, choolaimedu, Chennai-24. THE suit was filed on the basis that V. Natesapillai was the Kartha of Hindu undivided family along with his two sons N. Ethirajan, the father of the first plaintiff and the defendant and the suit property according to the plaintiffs is the copartionary property. THE second plaintiff is the wife of the said N. Ethirajan. After the death of Natesapillai who died on 05. 01. 1959 the coparcenary property devolved by survivorship upon the two sons stated above.

(2.) ACCORDING to the plaintiffs, the father of the first plaintiff and the husband of the second plaintiff, namely, N. Ethirajan is stated to have executed a release deed on 30. 12. 1972 in respect of his right in the coparcenary property in favour of the defendant and the said release deed is concocted and invalid. At the time when the said Ethirajan executed the release deed the second plaintiff was conceived and the child, namely, the first plaintiff was born on 18. 09. 1973 and therefore, the first plaintiff was in womb of the mother and therefore, the father had no right to release the share in favour of his brother, namely, the defendant. ACCORDING to the plaintiffs in spite of the said release the said N. Ethirajan has lived as a coparcenary member in the same property till his death on 16. 01. 1998 leaving behind him the plaintiffs as his only legal heirs to succeed to his undivided share in the coparcenary property and therefore, the release deed is not valid. ACCORDING to the plaintiffs, they came to know about the release deed only on 09. 09. 1998 when the first plaintiff obtained a certified copy of the release deed from the Sub Registrar office, Kodambakkam, Chennai. The plaintiffs have issued a legal notice to the defendant on 05. 10. 1998 and by a reply notice dated 20. 10. 1998 the defendant has refused to comply with the said demand. ACCORDING to the plaintiffs, they came to know about the execution of the release deed by Ethirajan dated 30. 12. 1972 only on 09. 09. 1998, the suit came to be filed on 07. 09. 2001.

(3.) IT is also denied that the plaintiffs came to know about the release deed only on 09. 09. 1998 especially when the first plaintiff is stated to have completed 28 years of age. IT is also stated that N. Ethirajan himself was a sickly person and he has frequently undergone treatment as inpatient and looked after by the defendant as well as his mother during her lifetime. The plaintiffs never bothered to attend to Ethirajan during the time when he was alive and suffering. IT is based on the said pleadings the parties went to trial. The second plaintiff was examined as P. W. 1 while the first plaintiff as P. W. 2 apart from another witness P. W. 3 and the plaintiffs have filed nine documents marked as Ex. A. 1 to A. 9. On the side of the defendant, the defendant was examined as D. W. 1 apart from another witness D. W. 2 and 15 documents were filed and marked as Ex. B. 1 to B. 15. The Trial Court has framed the following issues: 1) Whether V. Natesapillai died on 05. 01. 1959 as stated by the plaintiffs or he died on 15. 01. 1959 as stated by the defendant? 2) Whether the suit property was enjoyed by the plaintiffs and defendant as joint family property? 3) Whether the release deed dated 30. 12. 1972 executed by n. Ethirajan in favour of the defendant is valid and binding on the plaintiffs? 4) Whether the plaintiffs are entitled for 1/2 share? 5) Whether the plaintiffs are entitled for partition? 6) To what relief?