P MOHANA Vs. T K SELVARAJ

JUDGEMENT

(1.) This civil suit had been filed to pass a judgement and decree, against the Defendant:-

(2.) The Plaintiff and the Defendant are sister and brother and also daughter and son of late Kadumbadi Naicker. The suit property was purchased by their grand father, late T.Aalayappa Naicker, under the registered sale deed, dated 29.4.1929, registered as Document No.737 of 1929, on the file of the Sub Registrar of Assurances, Mylapore, Chennai. The said T.Aalayappa Naicker had constructed a house. He died intestate and his legal heirs had effected an oral partition. The suit property came to the share of the father of the Plaintiff and the Defendant. It had been stated that the father died intestate on 16.9.1950, leaving behind the Plaintiff, the Defendant and their mother Kabali Ammal as his legal heirs. It had been stated that the Plaintiff and her mother were having a platform idly stall and contributed towards the expenses of the family. The Defendant did not contribute anything. The Plaintiff's marriage was held on 9.6.1965 and she had purchased 4 sovereigns of gold jewels out of her own income. It had been further stated that the mother Kabali Ammal died on 17.11.2005. The Defendant had rented out some portion of the suit property and is collecting rent from the tenants. It had been further stated that the suit property is the ancestral property and consequently, under the Hindu Succession (Amendment) Act, 2005, the Plaintiff became a coparcener along with the Defendant and therefore, she is entitled to one half share in the suit property. Since her attempts for partition was avoided by the Defendant, the Plaintiff had issued a notice dated 25.1.2010, for which, the Defendant had issued a reply notice dated 12.2.2010 and the Plaintiff had issued a rejoinder on 25.2.2010. The Plaintiff had, therefore, filed this suit, seeking partition and separate allotment of one equal half share in the suit property and for accounts with respect to the rental income received by the Defendant.

(3.) In the written statement filed by the Defendant, the relationship among the parties was admitted. The fact that the property originally belonged to their grand father, Aalayappa Naicker was also accepted. It had been stated that after the death of Aalayappa Naicker, there was a partition among the members of the family and the property to an extent of about 500 sq.ft. was allotted to the Defendant. This partition deed is dated 15.3.1960 and registered as Document No.853 of 1960. Even prior to the partition, the father of the Plaintiff and the Defendant, Kadumpadi Naicker had died and consequently, the Defendant, as a male heir, was a coparcener in the property and was represented by his mother and natural guardian Kabali Ammal. It had, therefore, been denied that there was an oral partition as alleged in the plaint. It had been stated that Kadumpadi Naicker died on 16.9.1950 and the averments of the plaintiff were claimed to be false. It had been stated that after partition, the Defendant had been enjoying the property in his own rights and that the suit property was never treated as the joint family property and the Defendant had been enjoying the same in exclusion of every other person including the Plaintiff. The averment that the Defendant did not contribute any amount either towards the family expenses or to the marriage of the Plaintiff was specifically denied. It had been stated that their mother Kabali Ammal had inherited a property from her brother Kuppusamy, which was sold by the Plaintiff and the Defendant and the Plaintiff had received the entire sale consideration. It had been further stated that the Plaintiff had also executed a declaration in the presence of the witnesses, affirming the partition, dated 15.3.1960 through which the Defendant obtained title. This declaration was on 15.7.2006 and a sum of Rs.50,000/- was paid by the Defendant to the Plaintiff. It had been stated that there were no merits in the case and consequently, the Defendant claimed that the suit should be dismissed.