R.SANTHI Vs. DHANALAKSHMI AND OTHERS

JUDGEMENT

(1.) Both appeals came to be filed as against the judgment and decree passed in O.S. No. 111 of 1995. A.S. No. 767 of 2004 has been filed by the plaintiff and A.S. No. 1273 of 2003 has been filed by the fourth defendant. Since both appeals are arising out of the same judgment, we are inclined to dispose both the appeals in a common judgment. The plaintiff and defendants 2 to 5 are the children of one Kuppusamy Pillai. The first defendant is the wife of the Kuppusamy Pillai. Kuppusamy Pillai died intestate leaving behind the defendants 1 to 5 and they succeeded the suit property. The plaintiff is entitled to 1/6th share. Therefore, she issued a legal notice on 11.11.1994. The second defendant issued a reply notice dated 21.12.1994 with false averments alleging that Kuppusamy Pillai left the Will. Kuppusamy Pillai never executed any Will during his life time. Similarly Karai Olai is created one. Therefore, the plaintiff filed the suit praying for preliminary decree declaring the right in the properties.

(2.) The defendants 1 to 3 submitted that Kuppusamy Pillai prior to his death had executed a Will dated 06.04.1986 while he was in a sound disposing state of mind. The plaintiff and her sisters are not entitled to any share in the suit property. After the death of the Kuppusamy Pillai, the third defendant had exclusively discharged the debt of Rs. 54,000/- and another sum of Rs. 1,50,000/- incurred by the Kuppusamy Pillai. Subsequent to the said will, the defendants 1 to 3 orally divided the properties in pursuance of the terms of the said will and the same is evidenced by a Karai Olai, dated 17.09.1990 and hence prayed for dismissal of the suit.

(3.) It is the case of the defendants 4 and 5 that they are also entitled to 1/6th share in the suit properties. Besides the suit properties, Bank deposits and immovable properties are not included in the suit. The defendants 7 & 9 filed a statement stating that the Kuppusamy Pillai left the Will. The plaintiff is not in possession of the property. She is also aware of the Will executed by her father. Similarly except Door No. 44 and 45 other properties mentioned in item No. 1 were not available for partition.