VADIVEL Vs. THAIYAMMAL

JUDGEMENT

(1.) THIS appeal has been directed against the decree and judgment in O. S. No. 105 of 1993 on the file of the Additional Subordinate Judge, Erode.

(2.) THE averments in the plaint sans irrelevant particulars are as follows:-One Muthusami Gounder, S/o. Karuppanna Gounder of Unjalur Village, Kasba in Erode Taluk, had a son by name Muthusami Gounder and two daughters. The son of K. Muthusami Gounder is called by name M. Muthusami Gounder. Item Nos. 1 to 4 of the plaint schedule properties belonged to the joint family of the two Muthusami Gounders. On 30. 08. 1973, the two Muthusami Gounders, two daughters of K. Muthusami Gounder, the 2nd plaintiff, a son of one of the two daughters, and the wife of K. Muthusami Gounder entered into a family settlement partitioning the properties of Muthusami Gounders. Under the family settlement dated 30. 08. 1973, K. Muthusami Gounder, though he was entitled to an absolute estate in a half share of the family properties, contented himself with a life-estate in items 1 to 3 of the suit properties, gave the remainder to his son M. Muthusami Gounder absolutely and exclusively. Under the family settlement M. Muthusami Gounder was allotted Item No. 4 of the suit properties. On the death of K. Muthusami Gounder in the year 1987, his son M. Muthusami Gounder became entitled to items 1 to 3 of the suit properties absolutely and exclusively as his separate properties under the terms of the family settlement, termed partition, dated 30. 08. 1973 and item No. 4 of the suit properties was ancestral in the hands of M. Muthusami Gounder. Item No. 5 of the suit properties was purchased in the name of the 1st defendant from the income derived from item Nos. 1 to 4 of the suit properties. Hence, item No. 5 is also part of the joint-family properties. During the pendency of this suit the 1st plaintiff died. The 2nd plaintiff is the only heir and legal representative of the deceased. The 1st plaintiff was married to M. Muthusami Gounder as his first wife. The 2nd plaintiff is the only child born of the marriage. M. Muthusami Gounder purported to have married the 3rd defendant as his second wife during the subsistence of the first marriage. All the parties are Hindus. Hence, the purported second marriage is void. Defendants 1 and 2 are the son and daughter respectively born of the void marriage. The 2nd plaintiff is entitled to half share in the suit properties. The defendants 1 and 2 are together entitled to remaining ? share in the suit properties. After the death of the said Muthusami Gounder, plaintiffs demanded partition and separate possession of their share, but the defendants are not amenable for the partition. Hence, the suit for partition and also for mesne profits.

(3.) THE 1st defendant has filed a written statement would contend that the interpretation given by the plaintiff for the partition deed dated 30. 8. 1973 between K. Muthusami and others is not correct. What was allotted to this defendant's father M. Muthusami Gounder in the said partition is remainder in Schedule-A properties and 'b' schedule properties and hence the entire 'a' and 'b' schedule properties allotted to said M. Muthusami Gounder are the ancestral properties of the said joint family consisting of this defendant and his father M. Muthusamy Gounder. Hence the entire suit items 1 to 3 of the suit properties also are the ancestral properties of this defendant and his father M. Muthusami Gounder after the death of K. Muthusami Gounder. On 2. 1. 1986 while in sound and disposing state of mind this defendant's father M. Muthusami Gounder has executed a Will bequeathing his entire properties in favour of this defendant absolutely with a condition that this defendant should maintain his mother Sugantha till her life time, if she is alive on the date of his death and maintain this defendant's sister Sumathi till her marriage and celebrate her marriage satisfactorily giving her all seethanas, if her marriage does not take place during his lifetime. Hence, after the death of this defendant's father on 8. 9. 1991, the said Will has come into effect and hence his entire share in the suit properties devolved upon this defendant and this defendant is the absolute owner of the same. The allegations that on the death of K. Muthusami Gounder in the year 1987, his son M. Muthusami Goundar ie, father of this defendant became entitled to items 1 to 3 of the suit properties absolutely and exclusively as his separate properties under the terms of the family settlement, termed partition, dated 30. 8. 1973 are not true and correct. The allegations that item No. 5 of the suit properties was purchased in the name of the 1st defendant from the income derived from Item No. 1 to 4 of the suit properties and hence, item No. 5 is also a part of the joint family properties are not true and correct. Item No. 5 of the suit property was purchased by this defendant out of his separate earnings on 14. 09. 1987 in which his father M. Muthusami Gounder has no manner of right or interest in the same. The allegations that the 3rd defendant's marriage with M. Muthusami Gounder is void and that the defendants 1 and 2 are the son and daughter respectively born of the void marriage are not true and correct. Since the deceased M. Muthusami Gounder, father of this defendant has executed a Will while in sound and disposing state of mind on 2. 1. 1986 bequeathing his properties in favour of this defendant and that the said Will has come into effect after his death, the plaintiffs do not get any share in the suit properties items 1 to 4. The shares alleged in the plaint are highly imaginary and invented for the purpose of this suit and to blackmail the defendants. There was no demand for partition made by the plaintiffs. There is no cause of action to file the suit. The plaintiffs cannot claim joint possession in respect of the suit properties. Hence, the suit is liable to be dismissed.