M PALANI Vs. MUNIAMMAL

JUDGEMENT

(1.) THIS appeal has been directed against the decree and judgment in O. S. No. 5497 of 1996 on the file of the XI Assistant Judge, City Civil Court, Chennai. The lis is between the wife (1st plaintiff) and daughters (2nd and 3rd plaintiffs) of one Mari Naicker and Mari Naicker's son Palani. The suit is for partition of plaintiff's ? share in the plaint schedule property, which according to the plaintiff, was purchased by the first plaintiff's husband Mari Naicker under a sale deed dated 30. 11. 1973 from the Hereditary Trustee of Agastheeswarar Prassanna Venkatesaperumal Devasthanam. Even though the said sale deed, which was registered under Document No. 1862 of 1973 before the Sub-Registrar's Office, T Nagar, the same was not produced before the trial Court. But as per the directions of this Court, a copy of the said sale deed was produced by the learned counsel for the plaintiffs today, which is marked as Ex. C. 1.

(2.) THE averments in the plaint in brief are as follows:-The plaint schedule property bearing Door No. 8 (Old No. 7) Abbu Naicken Street, Nungambakkam, Chennai-34, is the self-acquired property of late Mari Naicker, the husband of the first plaintiff and father of the plaintiffs 2 and 3 and the defendant. He having put up the superstructure on the land belonging to the Agastheeswarar Prassanna Venkatesaperumal Deveasthanam, which was taken on lease by him and later acquired by him under the sale deed dated 30. 11. 1973 registered under Document No. 1862 of 1973 of the T Nagar Sub-Registrar's Office, out of which an extent of 231 sq ft has been gifted to a relative of the said Mari Naicker, who died intestate on 30. 5. 1985 leaving behind the plaintiffs and defendants as his heirs. The plaintiffs are each entitled to 1/4th share in the plaint schedule property and the defendant is entitled to the remaining 1/4th share. Ever since the death of the said Mari Naicker the plaintiffs are residing in the suit property and the defendant has been managing the suit property by collecting the rent from the tenants paying the tax and public charges. The defendant was paying the plaintiffs' due share in the rental income for some time, but subsequently failed to pay the same to the plaintiffs. The plaintiffs issued registered legal notice dated 8. 9. 1993 through their lawyer to the defendant calling upon him to render them true and proper accounts in respect of the rental collection made by him from the suit property and to pay them their due share in the rental income derived from the suit property. The defendant has failed to send any reply to the said legal notice. Hence, the suit for partition of plaintiffs' 3/4th share in the plaint schedule property.

(3.) THE defendant has filed written statement contending that the his father Mari Naicker was a tenant in a portion of the land belonging to the Agastheeswarar Prasanna Venkatesaperumal Devasthanam and that he was residing in the said land and put up a hut therein and to meet the said expenses Mari Naicker, father of the defendant, had borrowed money from the third parties. The first plaintiff eloped with one Sambandham on 8. 4. 1979 and the father of the defendant gave a police complaint. Thereafter, the whereabouts of the first plaintiff was not known. Long after the death of the father of the defendant, the first plaintiff came to Madras and she claimed the retirement benefits of Mari Naicker. The first plaintiff had collected all the retirement benefits and she is also getting family pension. The father of the defendant had borrowed heavy loan from various persons to meet the marriage expenses of Malliga, one of the sisters of the defendant. He had also entered into a sale agreement to sell the plaint schedule property and a suit for specific performance is also pending. One Mr. Mohammed Yacoob filed a suit against the plaintiffs and this defendant in O. S. No. 9396 of 1987 before this Court and the said suit was decreed. To avoid the execution this defendant has paid Rs. 12,000/- and settled the issue. The defendant has also spent Rs. 5,000/- to maintain the hut and has also developed the property out of his own funds to the tune of Rs. 60,000/ -. Since Mari Naicker had no money and he was indebted to several persons he could not improve the property. At the time of death of Mari Naicker, he had borrowed money to the tune of Rs. 50,000/ -. The said loan was cleared by this defendant. From the construction made by Mari Naicker he was getting a meagre rental income of Rs. 2,000/- from 1997 and previously the rental income was only below Rs. 1,000/ -. The entire construction expenses was met by this defendant. The plaintiffs are not entitled to any share in the plaint schedule property. The 3rd plaintiff had eloped with a married man and she is now living with him as his mistress. The entire retirement benefit of Mari Naicker was taken by the first plaintiff, even though she is not entitled to the same, since she had eloped with another person even during the life time of Mari Naicker. This defendant has to pay the entire amount in O. S. No. 5387 of 1987 and the plaintiffs have not paid any share for the discharge of the said decree amount. The plaintiffs are not residing in the suit property. The superstructure was constructed by this defendant and he had let out the premises and as such the plaintiffs were not collecting any rent as alleged. A suitable reply was given by this defendant to the notice sent by the plaintiffs. The plaintiffs have no cause of action to file this suit. The suit was not properly valued for the purpose of Court fee and jurisdiction. The plaintiffs are not entitled to the relief asked for in the plaint. Hence, the suit is liable to be dismissed with costs.