P SHANMUGHAM Vs. CHINNATHAYEE

JUDGEMENT

(1.) THIS appeal is focussed at the instance of the defendants as against the part of the judgment and decree dated 10.12.1993 passed by the learned Subordinate Judge, Tiruppur in O.S.No.360 of 1990, which was filed by the plaintiffs for partition and for other incidental reliefs. Whereas the plaintiffs filed Cross Objection challenging the finding of the trial Court upholding the validity of the Will in respect of the "B" scheduled property. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.

(2.) TERSELY and briefly, the case of the plaintiffs as stood exposited from the plaint could be portrayed thus:The immovable property described in the "A" Schedule of the plaint was purchased by the deceased Palaniappa Nadar as per Exs.A1, A2, A3 and A6 from and out of his own earnings without having any ancestral nucleus. The said Palaniappa Nadar had three sons and five daughters. The plaintiffs 1 to 3 and D4 and one Kamalam are the daughters and the defendants 1 to 3 are the sons. The said Palaniappa Nadar during his life time enjoyed the "A" Scheduled property as his self-acquired property and died leaving behind his sons and daughters to inherit his properties. The "B" Scheduled properties belonged to the mother, the wife of Palaniappa Nadar and she died leaving behind the same legal heirs as referred to supra to inherit her properties. The plaintiff No.4 is the husband of the deceased Kamalam, who was one of the daughters of Palaniappa Nadar and plaintiffs 5 to 7 are her children. However, the defendants had set up a plea as though, the mother of the plaintiffs executed a Will in favour of the minor children of her sons and she could not have executed such a Will as she was not in a sound disposing state of mind, in addition to not enjoying good health. Accordingly, they prayed for partition of the "A" Scheduled and "B" Scheduled properties into eight equal shares and allot four shares in favour of the plaintiffs.

(3.) BEING aggrieved by and dissatisfied with the judgment and decree of the trial Court in ordering partition of the "A" Schedule properties, the defendants 1 to 3 have filed this appeal on the following grounds among others.(i) The judgment and decree of the trial Court in ordering partition of the "A" Scheduled properties is against law, weight of evidence and all probabilities of the case.(ii) The trial Court failed to hold that the deceased Palaniappa Nadar had two acres of ancestral property, which yielded sufficient income to purchase the "A" Scheduled properties.(iii) Ignoring the legal presumption that the "A" Scheduled properties are the joint properties of the co-parcenery comprised of the deceased Palaniappa Nadar and his three sons, the trial Court simply ordered for partition as though the "A" Scheduled properties were the self-acquired properties of the deceased Palaniappa Nadar.(iv) The trial Court failed to note that Exs.A1 to A3 and A6 are only xerox copies of the documents, which are inadmissible.Accordingly, they prayed for setting aside that part of the judgment and decree of the trial Court in ordering partition of the "A" Scheduled properties.