MUTHULAKSHMI AMMAL Vs. AMURDHALINGA PADAYACHI

JUDGEMENT

(1.) The plaintiffs are the appellants herein for a suit for partition seeking share in the property of one Appulinga Padayachi, which was inherited by his sons Uthaandi Padayachi and Amurdhalinga Padayachi. According to the plaintiffs, Uthaandi Padayachi died intestate leaving behind his wife-first plaintiff and two children who are 2nd and 3rd plaintiffs in the suit. After the demise of Uthaandi Padayachi, Appulinga Padayachi and his son Amurdhalinga Padayachi were enjoying the suit property as a joint family property till the death of Appulinga Padayachi. The defendants 1,3 and 4 are the legal heirs of Appulinga Padayachi. When the plaintiffs sought for a share in the joint family property, it was refused by the first defendant. Hence, the present suit for partition seeking 5/12 share to the plaintiffs 1 to 3 in the suit schedule property.

(2.) Defendants 2,5,and 6 have purchased suit items 3,5,6 and 7 pending suit and therefore they are also impleaded as party-respondent. The suit was contested by the defendants 1 and 2 on the ground that the suit properties are not joint family property and it was not enjoyed in common by the joint family as alleged by the plaintiff. Appulinga Padayachi and his sons were never enjoying the property jointly. Infact, Uthaandi Padayachi died in the year 1968 before the death of his father Appulinga Padayachi, who died an year later in 1969. Amurdhalinga Padayachi and Uthaandi Padayachi alongwith their father Appulinga Padayachi never lived together as alleged by the plaintiff during their life time. Immediately after his marriage, Uthaandi Padayachi left the family and settled in his in-law's village and on the death of Uthaandi Padayachi, the plaintiffs shifted their family. Therefore, at no point of time, the plaintiffs and the first defendant were living as a joint family and the suit properties were never enjoyed as joint family property. The suit properties were all purchased by Appulinga Padayachi in his name out of his own income. During his life time, Appulinga Padayachi executed a will in favour of the first defendant's son Jambulingam Padayachi. As the guardian of the minor Jambulingam Padayachi, the first defendant was maintaining the property and after the death of Jambulingam Padayachi, the property has reverted to the first defendant absolutely. The first defendant being in enjoyment of suit property for considerable period of time, he has perfected the title by adverse possession and in so far as the second item of the suit property, the second defendant purchased it from Appulingam Padayachi and enjoyed the property. The other defendants 5 and 6 in their written statement has contended that in S.No.412/9, out of 2.05 acres, the fifth defendant has purchased 31 cents and sixth defendant has purchased 21 cents and in S.No.412/8, the 6th defendant has purchased 31 cents. Therefore, the plaintiffs have no right over these properties.

(3.) In the additional written statement, the first defendant has contended that Uthaandi Padayachi apart from second and third plaintiff had another daughter by name Kuppammal, who died in the year 1979 after her marriage. She is one of the legal heir of Uthaandi Padayachi and on her death, her husband will inherit the property which liable to get devolve upon Kuppammal, daughter of Uthaandi Padayachi. Regarding the first and second item property, the first defendant has contended that they are not property of Appulinga Padayachi. Kandasamy, who is the husband of Kuppammal has been impleaded as seventh defendant in the suit, who has filed a written statement in support of the defendants pleading that the suit properties are self-acquired property of Appulinga Padayachi and he has executed a will. Therefore, the plaintiffs are not entitled for any share in the suit property. In response to the written statement and additional written statements, the plaintiff has filed a reply statement questioning the Will of Appulinga Padayachi alleged to have been executed in favour of Jambulingam Padayachi, son of Amurdhalinga Padayachi. In the additional written statement of the first defendant, it was contended that on 11.03.1969, the plaintiffs issued lawyer notice contending that the family property was divided in the year 1965 and has included the suit schedule property as property allotted to Uthaandi Padayachi. Whileso, there cannot be another suit for partition. The additional written statement filed by the first defendant has been adopted by the other defendants namely 2,5 and 6.