S KARTHIKEYINI Vs. R SELVARANGA MUDALIAR (DECEASED)

JUDGEMENT

(1.) This Original Side Appeal is preferred by the two plaintiffs, aggrieved by the judgment and decree passed on 26.06.2014, in Civil Suit No.702 of 2002, instituted by them, seeking partition of the suit schedule properties, among other reliefs.

(2.) One Smt. Dhanakoti Ammal seems to have possessed and owned extensive properties. She had three daughters, namely, Duraikannu Ammal, Kamala Ammal and Shanmugha Vadivu. Shanmuga Vadivu was the mother of the plaintiffs as well as the defendants 2 to 5. The first defendant was her husband. Dhanakoti Ammal executed Ex.P-2, Registered Settlement Deed, dated 14.03.1959, settling item No.1 of Suit 'A' Schedule property, a house and land in Old No.23 and New No.24, South Mada Street, Mylapore, Chennai, in favour of her three daughters, namely, Duraikannu Ammal, Kamala Ammal and Shanmuga Vadivu. Dhanakoti Ammal also settled several other houses, vacant sites and agricultural lands, situated at Chengalpet, which are described as item Nos.2 to 4 of Suit 'A' Schedule properties, in favour of Shanmugha Vadivu, mother of plaintiffs and defendants 2 to 5. Shanmugha Vadivu died intestate on 29.03.1965. Thereafter, the legal heirs of Shanmugha Vadivu, the legal heirs of Duraikannu Ammal and the surviving daughter of Dhanakoti Ammal, namely, Kamala Ammal had divided the property at South Mada Street, Mylapore, by way of a Partition Deed, Ex.P-3, dated 28.04.1980. Item No.1 of Suit 'A' Schedule properties thus fell to the share of the legal heirs of Shanmugha Vadivu. That was the reason, why the plaintiffs prayed that they are entitled for 1/7th share each in item No.1 of Suit 'A' Schedule properties.

(3.) Defendants 2 and 3 have resisted the said claim, on the ground that after Ex.P-3, Partition Deed, dated 28.04.1980, it is the first defendant in the suit, who has developed the property by raising commercial constructions thereon, from and out of his own funds and, hence, item No.1 of Suit 'A' Schedule properties is not available for partition. It was further contended by defendants 2 and 3 that the first defendant has executed a Will on 05.06.2002, bequeathing item No.1 of the suit 'A' Schedule properties in favour of his three sons, namely, defendants 2, 3 and 4 and excluded the two plaintiffs and the other daughter, namely, defendant No.5, from getting any share therein. Therefore, the plaintiffs are not entitled to claim partition of item No.1 of Suit 'A' Schedule properties.