DURAIRAJ Vs. RATHINAMMAL

JUDGEMENT

(1.) THIS second appeal has been preferred against the decree and judgment in A. S. No. 203/1993 on the file of the Court of Principal District Judge, Vellore. The plaintiff, who has won the case before the trial Court could note succeed in the first appeal preferred by the defendants, has preferred this second appeal.

(2.) THE short facts of the plaintiff's case as narrated in the plaint are as follows:-The suit has been filed by the plaintiff for declaration of title and consequential permanent injunction in respect of the plaint schedule property. The plaintiff is the youngest son of one Periyapaiyan and the other two elder brothers are Duraisamy and Mahadevan. As per the Koorchit entered into between the brothers on 5. 1. 1972 the plaint schedule property was allotted to the share of the plaintiff and from that date onwards the plaintiff is in possession and enjoyment of the plaint schedule property. The mother of the plaintiff is Ayammal who died on 1. 1. 1979. After her death, the plaintiff is in possession and enjoyment of the plaint schedule property. 3 acres 95 cents in S. No. 13 was purchased in benami in the name of the mother of the plaintiff viz. Ayammal. The suit property was purchased out of the joint family income in the name of Ayammal. Ayammal is only a benamidar. The property in the name of Ayammal was partitioned among three sons of Ayammal on 5. 1. 1972. The plaintiff's elder brother Mahadevan died some three years back. While Mahadevan was alive he never objected to for the plaintiff's enjoyment over the suit property. After the death of Mahadevan his wife first defendant claimed right and title in respect of the plaint schedule property on the basis of a Will said to have been executed by Ayammal five days prior to her death in respect of 3 acres 95 cents. The plaintiff does not know anything about the above said Will. The said Will is not a genuine document. Plaintiff's mother Ayammal was bed ridden even three years prior to her death. She was in a unconscious state of mind and was lying in stupor. The said Ayammal has no right or title in respect of the suit property to execute the alleged Will in favour of the first defendant, since the property was purchased as binamy in the name of Ayammal from out of the joint family funds. As per the partition dated 5. 1. 1972, the plaintiff is in possession and enjoyment of the suit property by paying land tax. Sine the defendant made an attempt to interfere with the peaceful possession and enjoyment of the plaintiff over the suit property, the plaintiff has filed the suit.

(3.) THE first defendant has filed a written statement adopted by the defendants 2 to 4 as follows:-The suit is not maintainable as per the law and facts. The defendants admit the relationship between the parties. Mahadevan, Duraisamy and the plaintiff are the three sons of Periyapaiyan and Ayammal and their daughters are Pappammal and Rajammal. The first defendant is the wife of the deceased Mahadevan. D2 to D4 are the children of the deceased Mahadevan and first defendant. It is not true to say that the brothers have partitioned the suit property as per the partition dated 5. 1. 1972. No one is in possession of their respective shares as per the above said partition deed. The possession in respect of the suit property was not entitled to the plaintiff in lieu of the said Koorchit dated 5. 1. 1972. The allegation that the plaintiff is in possession and enjoyment of the suit property even after the death of Ayammal is false. The allegation that 3 acres 95 cents in S. No. 13 was purchased out of the nucleus income of the joint family in the name of Ayammal is not true. Even before 5. 1. 1972 the above said 3 acres 95 cents was not enjoyed in common. The facts is that Ayammal had purchased 3 acres 95 cents viz. Plaint schedule property in S. No. 13 from out of her own income by selling sheeps and gold ornamaments. Under the sale deed dated 12. 3. 1943, the above said 3 acres 95 cents belongs to Ayammal exclusively. The said Ayammal was paying land tax to the suit property and is enjoying 3 acres 95 cents exclusively. Ayammal was under the maintenance and care of the first defendant at the time of her death. Out of love and affection towards the first defendant Ayammal had executed a Will dated 25. 12. 1978 bequeathing 3 acres 95 cents in S. No. 12. Within 1 or 2 days after executing the said Will, Ayammal died due to heart attack. After the death of Ayammal, the first defendant is in possession and enjoyment of the suit property by paying land tax. Hence, the suit for permanent injunction is not maintainable. The Will dated 25. 12. 1978 was executed by Ayammal while she was in sound disposing state of maind. The allegation that Ayammal was bed ridden for nearly three months before her death is travesty of truth. Only to obstruct the legal possession and enjoyment of the defendant in respect of the plaint schedule property the suit has been frivolously filed by the plaintiff. The alleged Koorchit dated 5. 1. 1972 is not a valid one. The sons of Ayammal have no right to partition the suit property under Koorchit during the life time of Ayammal. In the above said Koorchit neither Pappammal nor Rajammal were included. The suit is also bad for non-joinder of necessary parties like Pappammal and Rajammal. Hence the suit is liable to be dismissed with costs of this defendants.