KANCHANA Vs. S RAMASAMI

JUDGEMENT

(1.) THE defendant who suffered the decree before the lower court, in O. S. No. 101 of 1990, on the file of the Principal Subordinate Judge, tirunelveli, has filed the above appeal. THE plaintiff filed the suit for declaration that the plaintiff is entitled to the suit properties and for directing the defendant to handover possession of the suit properties, on or before 5. 12. 1994, for mesne profits, and for costs. According to the plaintiff the suit properties originally belonged to one Parijatham Ammal, the widow of the plaintiffs brother Srinivasaga Naidu. He died in the year 1965. After his death the major portion of the suit properties had been inherited by the said parijatham Animal. Other properties were acquired by the said Parijatham Ammal out of the income from her husband's estate. THE said parijatham Ammal died intestate on 18. 8. 1987 leaving no issues. THE plaintiff is her only heir under Sec. 15 of the Hindu Succession Act as the plaintiff is her husband's brother. It is the specific case of the plaintiff that mere is no nearest heir on the death of Parijatham Ammal and so the plaintiff is entitled to the suit properties. THE defendant is the parijatham Animal's brother's daughter. THE defendant's father, was assisting Parijatham Ammal for sometime in managing the business. In recognition of the same, Parijatham Ammal transferred one bus along with route permit to the father of the defendant. Later some disputes arose between them and while they were pending, Parijatham ammal died. According to the plaintiff, the plaintiff, after the death of parijatham Animal, took possession of some items of the plaint schedule properties. When the defendant' s father and his sisters attempted to forcibly dispossess the plaintiff, the plaintiff filed a suit O. S. No. 932 of 1987 on the file of the District Munsif Court , Ambasamurdram for permanent injunction restraining them from interfering with his possession and enjoyment. THE plaintiff applied and obtained interim injunction in LA. No. 1888 of 1987 on 21. 8. 1987. THE defendant was also impleaded as a party to the said suit. THE said suit was subsequently transferred to the Additional District Munsif Court, tirunelveli and re-numbered as O. S. No. 1156 of 1989. Subsequently, the plaintiff withdrew the said suit with permission to file a fresh suit for title, and accordingly permission and granted. According to the plaintiff, the defendant is not the adopted daughter of said Parijatham Ammal and such adoption did not take place and Parijatham Ammal never executed any document relating to the said adoption. Even the will relied on by the defendant's father is also a fraudulent one and Parijatham Ammal never executed such a will. Since the plaintiff was forcibly evicted by the defendant's father, the defendant's possession is illegal and she cannot claim any right in the properties. Hence the plaintiff had filed the above suit.

(2.) THE defendant who was a minor at the time of filing the suit, filed a written statement through her mother and guardian. After she attained majority, she filed additional written statement. According to the defendant, she was born on 8. 5. 1975. On the 40th day, she was given in adoption by the natural parents to the said Parijatham. THE said adoption was in accordance with Hindu Law after following all rituals and rites. To confirm the said adoption, the said Parijatham Ammal executed a registered deed on 24. 2. 1982. According to the defendant, the value with respect to the suit properties are not properly mentioned in the plaint. THE plaintiff has filed the suit without even impleading the other parties who were impleaded in O. S. No. 932 of 1987, though that suit was withdrawn with liberty to file a fresh suit. After the demise of the said Srinivasaga Naidu, dispute arose between the wife and his sisters on the one side, and the plaintiff, his minor sons, his brother and brother' s sons on the other side. So the late parijatham Ammal and her two sisters, namely, Rathi and Santha filed O. S. No. 82 of 1966 on the file of Sub Court, Tirunelveli, which ended in compromise and a compromise decreed was passed on 7. 3. 1967. As per the terms of the compromise, the properties relating to Parijatham Ammal are given to her absolutely with full power of alienation and encumbrance and either the present plaintiff or the other defendants in O. S. No. 82 of 1966 are not entitled to the same. THE defendant denied the fact that Parijatham Ammal died on 16. 8. 1987. On the death of Parijatham Ammal, the suit properties never devolved upon the plaintiff. But the suit properties devolved upon the defendant, as her adopted daughter. THE late Parijatham Ammal executed a will bequeathing the properties in favour of the defendant. THE defendant was adopted by late Parijatham Ammal by performing all rituals and rites. To avoid any complication and dispute, late Parijatham ammal executed a deed of adoption confirming the factum of adoption. At no point of time, the plaintiff is in possession of any one of the properties belonged to the estate of Parijatham Ammal and the defendant has been in possession with absolute right from the date of demise of her adoptive mother. THE possession of the defendant is valid and legal and the defendant has every right to be in possession of the properties belonging to her late adoptive mother. THE defendant is not bound to render accounts. According to the defendant, the estimation of the plaintiff of the mesne profits is not correct. According to the defendant the plaintiff cannot be a heir to the said parijatham Ammal. In view of the compromise decree passed in C. S. No. 82 of 1996, the plaintiff is not entitled to inherit the suit properties. On the basis of the above pleadings, the defendant prayed for dismissal of the suit with cost.

(3.) MR. V. Ramajagadeesan, learned counsel for the appellant, to exclude the plaintiff from claiming any right as heir of the said parijatham Ammal, has placed four hurdles, viz. , (1) under Ex. B-16, which is the compromise decree in 0:s. No. 82 of 1966, dated 7. 3. 1967, the plaintiff had given up all his rights in the suit properties and so now he cannot claim any right; (2) the defendant had been adopted by the said Parijatham Ammal; (3)under Ex. A-19 will the said Parijatham Ammal, bequeathed her properties in favour of the defendant; and (4) in any event, there are other heirs of the deceased parijatham Ammal available and so the plaintiff alone cannot claim right.