PALANIAMMAL Vs. SUNDARAMBAL

JUDGEMENT

(1.) DEFENDANTS 3 to 5 in the Trial Court are the appellants. The first respondent herein filed the suit in O. S. No. 86 of 1987 on the file of the Sub Court, Tiruppur for a partition and separate possession of one third share in Schedule A to D properties mentioned in the plaint and also for direction against defendants 3 to 5 to hand over possession of the said share to the plaintiff apart from mesne profits. The case of the plaintiff was that she is the elder sister of the first defendant. Both of them having born to their mother Palaniyammal the second defendant who has subsequently died, through, Chenniyappa Gounder. After the life time of their mother Chenniyappa gounder has married the third defendant in the suit as his 2nd wife. The 4th defendant was born to Chenniyappa Gounder through his second wife Palaniyammal as their son. The 5th defendant is the purchaser of the D Schedule property from the third defendant.

(2.) IT is the further case of the plaintiff that during the life time of the second defendant, the said Chenniyappa Gounder has lived with the third defendant and therefore, the fourth defendant who was born to the third defendant through Cheniyappa Gounder is illegitimate. Therefore, according to the plaintiff the first defendant and the second defendant their mother are alone entitled to the properties of Cheniyappa Gounder. According to the plaintiff, Chenniyappa Gounder died on 14. 07. 1984 intestate leaving behind his wife, the second defendant apart from the plaintiff and the first defendant as his daughters being his only legal heirs. Thereafter, it is the case of the plaintiff that the third defendant who was his legitimate wife of her father cheniyappa Gounder has trespassed into the A to C Schedule properties and defendants 3 and 4 are in possession as trespassers.

(3.) THE Trial Court has framed the various issues including, as to whether the third and fourth defendants are the legal heirs of chenniyappa Gounder, as to whether the Will executed by Chenniyappa Gounder on 07. 08. 1981 is valid in law and if so whether the fourth defendant is entitled for the A and B Schedule properties, as to whether the plaintiff was entitled for one third share apart from the issue as to whether the sale given to the fifth defendant in respect of D Scheduled property is binding on the plaintiff. THEre was another suit filed by the plaintiff in O. S. No. 35 of 1988 claiming one fourth share from the 4th defendant, namely, Indian Bank, Tiruppur in respect of the amount pending and also for injunction against defendants 1 to 3. However, in the present appeal we are not concerned about the said second suit. Both the said suits were taken together and the plaintiff was examined as P. W. 1 apart from the third defendant as D. W. 1 and two other witnesses D. W. 2 and D. W. 3 on the defendant side after marking nine documents on the plaintiff"s side as Ex. A. 1 to A. 9 and seven documents on the defendant side as Ex. B. 1 to b. 7.