MALARKODI Vs. CHIDAMBARAM

JUDGEMENT

(1.) THIS appeal has been preferred against the Judgment and decree in A. S. No. 52 of 1994 on the file of Sub Court, Nagapattinam. The plaintiff in O. S. No. 166 of 1992 on the file of District Munsif's Court, Nannilam, who has lost her case before the trial Court and the first appellate Court has preferred this appeal. The suit is for permanent injunction.

(2.) THE short facts of the plaintiff's case relevant for the purpose of deciding this appeal sans irrelevant particulars are as follows:

(3.) THE second defendant has adopted the written statement filed by the first defendant which is as follows: the plaintiff is the sister of defendants 1 and 2. Apart from these two sisters, the plaintiff is also having another sister by name Dhanalakshmi. The suit property originally belonged to one Arumugam, the grand father of the plaintiff and the defendants, who died leaving his sons Duraisamy and Narayanasamy. In the family partition, the suit property was allotted to the share of plaintiff and the defendants' father Duraisamy, who died in the year 1979 leaving behind his wife, Sundaravalli Ammal and the plaintiff and the defendants and another daughter Dhanalakshmi, as his legal heirs. The first defendant has left the village in search of a job and he would secure a job at Mudikondan Village and he is permanently residing there. Upto 15. 3. 1991, Sundaravalli Ammal was residing in the plaint schedule property and enjoying the same. The first defendant was residing with his mother, helping her in arranging the marriage for her sisters. Till the death of Sundaravalli Ammal, the first defendant was residing with her. All the other averments contrary to the above said facts in the plaint are denied as false. This defendant made arrangements for conducting the marriage of the plaintiff in the year 1979. During 1985-86, this defendant along with his mother helped the plaintiff and her husband to conduct the tea stall at the village. The plaintiff and her husband were under the care and protection of Sundaravalli Ammal till her death. The first defendant also helped them in conducting the tea stall. The plaintiff and her husband ill treated Sundaravalli Ammal and in this regard, many Panchayats were held between Sundaravalli Ammal and the plaintiff. The plaintiff refused to heed to the advise of the panchayatars, Sundaravalli Ammal preferred a complaint to the police against the plaintiff on 29. 6. 1990 which ended in compromise. In the said Panchayat, the plaintiff and her husband agreed to vacate the suit house and also agreed to reside separately. For that 15 sq feet of plot was allotted to them for constructing a separate house near the suit property. The said settlement was reduced to writing in which both the plaintiff and Sundaravalli Ammal have signed. As per the above settlement, the plaintiff has also vacated the suit house and began to reside in a nearby hut put up by her and her husband. Sundaravalli Ammal began to reside in the house of one Kandaswamy, brother of her husband, due to the ill treatment received at the hands of the plaintiff and her husband. At that time, Sundaravalli Ammal had locked the suit house. To fulfil the last desire of Sundaravalli Ammal a hand full of sand was taken from the suit house to be handed over to her and at that time, both the plaintiff and her husband quarrelled which resulted in a complaint preferred by Sundaravalli Ammal with the police. The police warned both the plaintiff and her husband not to give any trouble to Sundaravalli Ammal and on the same day ie. , on 15. 3. 1991 Sundaravalli Ammal expired. The first defendant met the cremation expenses of Sundaravalli Ammal and obsequies were also performed by the first defendant. The house of Sundaravalli Ammal in the suit property was kept under lock and key immediately before and after the death of Sundaravalli Ammal. Two days after her death, both plaintiff and her husband broke open the lock and trespassed in to the suit house. The plaintiff and her husband are in possession of the suit property only in the capacity of the trespassers. Sundaravalli Ammal had not executed any "will" in favour of the plaintiff as alleged in the plaint. The alleged "will" in the plaint dated 1. 3. 1985 is a forged document and created for the purpose of this case by the plaintiff. During the life time, she has not executed any "will" in favour of the plaintiff or anybody else. On the basis of the "will" the plaintiff is not entitled to claim any right in the suit property. The suit property is the ancestral property of the defendants. The first defendant is entitled to 7/10th share in the suit property. Sundaravalli Ammal is entitled to 1/10th share alone in the suit property. The plaintiff has no cause of action to file the suit. Hence the suit is liable to be dismissed with costs.