PARVATHY (DECEASED) Vs. M.N.JAYARAMAN

JUDGEMENT

(1.) The plaintiff in O.S. No.59 of 2003 on the file of the Additional District Judge, Fast Track Court No. 1, Salem is the appellant. Originally the suit was filed in O.S. No.133 of 2002 on the file of the Sub-Court, Salem and later it was transferred and re-numbered as above. The plaintiff has sought for partition and separate possession of her ?rd share in the suit property which is a dwelling house belonging to the joint family.

(2.) The case of the plaintiff is that the property belongs to the joint family consisting of one Krishna Iyer and his three sons namely, Janarthanan, Padmanabhan, Jayagopi and two daughters-plaintiff and one Jayalakshmi. One of the sons namely Padmanabhan is the first defendant. The second defendant Rajagopal is the husband of another daughter namely Jayalakshmi, who died in 1996. It is the further case of the plaintiff is that the said Janarthanan, son of Krishna Iyer had released his right over the suit property under Ex.A.2-release deed dated 01.10.1971 in favour of his father and other two brothers. Jayagopi, the other son of Krishna Iyer had also released his right over the suit property under Ex.A3 release deed dated 19.11973, in favour of his father and his brother-first defendant. Therefore, the plaintiff would claim that the first defendant, herself and the second defendant, who is the legal representative of the deceased Jayalakshmi are entitled to get ?rd share each.

(3.) The first defendant alone contested the suit. According to the first defendant, the deceased Krishna Iyer had executed a Will in his favour on 22.09.1982 and therefore as per the said Will, he is entitled to the entire property and the plaintiff is not entitled to any share. Krishna Iyer had died prior to enactment of Hindu Succession (Amendment) Act (TN Act 1 of 1990) and Hindu Succession (Amendment) Act, 2005 (Central Act 39 of 2005) Therefore from the date of death of Krishna Iyer i.e., 25.09.1982, the Will came into effect and the first defendant became the owner of the property. The first defendant has also contended that as per Sec. 23 of Hindu Succession Act 1956, the plaintiff being a female heir, she is not entitled to partition of the property which belongs to joint family.