M.V. SOMASUNDARAM Vs. TAMIZHARASI AND OTHERS

JUDGEMENT

(1.) The un-successful plaintiff in a suit for declaration and recovery of possession, is the appellant. According to the plaintiff, he and his brother one Shanmuga Udayar are members of a joint family. In a partition that took place in the year 1932, the said Shanmuga Udayar being the elder brother has taken larger share by allotting lesser share to the plaintiff. The plaintiff thereafter joined the Royal Indian Army and after discharge from the Army returned to his native place in 1943. Since his brother, the said Shanmuga Udayar, was a very influential person, he could not take any steps against him to demand his proper share. He left the village and joined Sri Aurobindo Ashram in Pondicherry, where he stayed till the death of Holy Mother in the year 1972. Thereafter he shifted to Anandha Ashram run by Swami Geethanandha at Pondicherry and stayed there till the year 1980. During 1974, his elder brother namely Shanmuga Udayar visited the Anandha Ashram and confessed that he has deprived him due share of the property and thereafter he executed a Will on 18.01.1975 bequeathing the suit "A" schedule property to the plaintiff.

(2.) In 1982 the 4th defendant in the present suit Sivanantham, S/o. Shanmuga Udayar has filed a suit in O.S. No. 63 of 1982 seeking partition and separate possession of his share. In the said suit he had described that the first defendant in the present suit as a concubine of Shanmuga Udayar. The said suit ended in appeal before this Court and the Division Bench of this Court found that the first defendant is a legal heir and she is also be entitled to equal share in the suit property. Therefore a preliminary decree was passed granting 1/9th share to the first defendant.

(3.) The plaintiff would further contend that the said Shanmuga Udayar died on 14.05.1995 and the Will executed by him on 18.01.1975 being the only valid Will came into effect thereafter. According to the plaintiff, he is entitled to a share in the suit property as per the said Will. The defendants 1 and 2 namely wife and daughter of the said Shanmuga Udayar filed a written statement, contending that the Will set up by the plaintiff is not true. They would also contend that the said Shanmuga Udayar executed a Will in favour of the second defendant on 07.12.1993 and codicil on 02.02.1995.