GOWRI Vs. SUBBU MUDALIAR

JUDGEMENT

(1.) Aggrieved over the decree and judgment of the learned trial Court, dismissing the suit filed for partition, with the observation that the plaintiff is only entitled to enjoy certain items to A schedule and half share in the B schedule property till her life time, the present appeal came to be filed by the plaintiff.

(2.) Brief facts of the plaintiff's case is as follows:- The plaintiff is the wife of one Arumugam. The said Arumugam is the younger brother of the first defendant. The second and third defendants are the sons of the first defendant. The plaintiff's husband and the first defendant's father namely Mannarsamy Mudaliar was died in the year 1991 and his wife Chinna Kulandai, pre-deceased him in the year 1955. The plaintiff's husband and the first defendant are the only legal heirs and legal representatives to inherit the estate left by Mannarsamy Mudaliar. The suit properties comprise in Schedule-I was obtained by the deceased Mannarsamy Mudaliar by way of partition through Court in the year 1975. Schedule-II was obtained by the first defendant and the plaintiff's husband through the exchange deed in the year 199 Schedule-II was purchased by the first defendant and the plaintiff's husband and Mannarsamy Mudaliar from the nucleus of the joint family properties. After the demise of the Mannarsamy Mudaliar his two sons are enjoying the properties jointly. Thereafter, the plaintiff's husband died in the year 1994. Thereafter, the plaintiff and first defendant are enjoying the properties jointly. The plaintiff has also adopted a son by valid adoption deed. Now, due to misunderstanding between the plaintiff and the defendant in enjoying the properties jointly, the plaintiff issued a legal notice dated 25.2000 for division of the properties. Hence the suit for partition.

(3.) The defendants in the written statement admitting the relationship submitted that originally one Ganabady Mudaliar died leaving behind him some properties which were succeeded by his legal heirs (1) Sellappa Mudaliar (2) Sundira Mudaliar (3) Vengachi Mudaliar alias Vengalatta Mudaliar and (4) Paramasiva Mudaliar. Among them Sundira Mudaliar died issueless. Sellappa Mudaliar was the family head of other brothers living jointly (communeaute) and earning jointly and purchased some more properties as joint family properties among brothers. Sellappa Mudaliar died leaving behind him his only son Sivasamy Mudaliar. Sivasamy Mudaliar died issueless leaving behind him Vengachi and Paramasiva to have jointly for which former was the chief owning the joint family properties. Among the said brothers Paramasiva Mudaliar pre-deceased Vengachi Mudaliar leaving behind him Mannarsamy Mudaliar as his legal heir. Thereafter, Vengachi Mudaliar and Mannarsamy Mudaliar jointly in communeaute and then amicably partitioned among them with equal shares putting bounds according to their customary practise in the village and enjoying separately each one share on 05.01.1948. Vengachi Mudaliar also died leaving behind him his only son Pachayappan as his legal heir. When the matter stood thus, Pachayappan played fraud and created encumbrance over some of the properties of Mannarsamy by mortgaging later's share of the property also and obtained loan from Agricultural Department, Government of Pondicherry. Hence, Mannarsamy filed a suit in O.S.No.114 of 1969 on the file of I Additional District Court, Pondicherry for declaration of his title and for nullity of mortgage deed created. The above said suit was decreed in favour of Mannarsamy. Mannarsamy had two sons namely Subbu Mudaliar alias Subburathinam and Arumugam alias Pachayappan. During the life time of Mannarsamy Mudaliar plaintiff's husband and plaintiff wanted to live in separate house and have separate mess. Mannarsamy Mudaliar out of his affection to plaintiff's husband, set up a separate family in a separate building. Pachayappan the husband of the plaintiff also started leading extravagant life addicted to alcohol and contracted debts.