POTHILINGAM Vs. M. SANKARAPANDIAN

JUDGEMENT

(1.) THIS appeal has been directed against the judgment and decree in A.S.No.157 of 1990, on the file of the Court of Subordinate Judge, Srivilliputhur, which had arisen out of a judgment and decree in O.S. No.719 of 1981, on the file of the Court of Additional District Munsif, Srivilliputhur. The unsuccessful plaintiffs before the first appellate Court are the appellants herein.

(2.) THE averments in the plaint in brief sans irrelevant particulars are as follows: Plaint schedule Items No.1 and 2 are purchased by one Sornavel Ammal W/o.V.P.Veerabadran under registered sale deeds dated 9.4.1949 and 10.6.1971 respectively. The said V.P.Veerabadran was employed in State Government and he purchased the plaint schedule properties Items No.1 and 2 from his earnings in favour of his wife Sornavel Ammal, who died without any issues on 11.7.1980, leaving her husband V.P.Veerabadran as her only heir. The said V.P.Veerabadran became entitled to item 3 of the plaint schedule under an assignment order for value from the Government. He was in possession of all the plaint schedule properties and he died intestate on 3.7.1981. The plaintiffs are sons and daughters of the deceased brother Subramania Pandaram. The second defendant is the only daughter and heir of Radhakrishnan, another deceased brother of late V.P.Veerabadiran Pandaram. The plaintiffs and the second defendant are the legal heirs of the deceased V.P.Veerabadiran Pandaram, under the provisions of the Hindu Succession Act. The first defendant is brother of Sornavel Ammal, the deceased wife of V.P.Veerabadiran Pandaram. The first defendant has no right or title in respect of the plaint schedule properties. On the death of V.P.Veerabadiran Pandaram, the first defendant trespassed into the house in the first item of the plaint schedule property and the defendants 1 and 3 trespassed into the house of the plaint items 2 and 3 of the plaint schedule properties. They are also claiming title to the plaint schedule properties, which is illegal and not sustainable under law. The plaintiffs 1 and 3 have sent a notice on 24.8.1991 to defendants 1 and 3 demanding them to surrender the possession of the properties. They have sent a reply on 30.8.1981, claiming that the plaint schedule properties belonged to their parents and they became entitled to them by way of inheritance and they also claimed a right by way of adverse possession. Since, the second defendant is unwilling to join as plaintiff in the plaint, she was added as defendant in the suit. This suit is for declaration that plaintiff and the second defendant are jointly entitled to the plaint schedule properties and for subsequent relief of joint possession of the plaint schedule properties in favour of the plaintiff and the second defendant.

(3.) THE first defendant in his written statement would contend that the plaint schedule first item is worth more than Rs.70,000/ - and the plaint schedule 2nd item is worth more than Rs.40,000/ - and the plaint schedule 3rd items value is more than Rs.4,600/ -. The total value of the plaint schedule property comes to Rs.1,14,600/ -. Hence, this Court has no jurisdiction to try the suit. The plaintiff and the second defendant have neither title nor possession in respect of the plaint schedule properties.The plaint schedule 1st and 2nd Items were purchased by the joint family funds of the first defendant for the benefits of his sisters in her name. The plaint schedule 1st item was purchased during the life time of this defendant -s father and the 2nd item of the plaint schedule property was purchased after his death. At the time of purchase of the plaint schedule 1st item, there was a terraced portion only in its front portion with an extent of 10' x 10'. After the purchase, this defendants - family had constructed at different stages during the year 1956 to 1960 at a cost of Rs.20,000/ -. The plaint schedule 2nd item was only a site at the time of purchase. After the purchase of the suit, a house was built in the year 1971. The said construction was also made by the joint family at Rs.20,000/ -. The first defendant and his family and his parents were residing in the plaint schedule 1st item. From the date of his purchase, the first defendant and his family were in sole occupation of the schedule 2nd item of property. Sornavel Ammal was never the owner of the plaint schedule item Nos.1 and 2. Even after the death of Sornavel Ammal her husband was not in occupation of the said items of the properties. Veerabadran Pandaram had two brothers by name Subramaniam and Radhakrishnan and had three sisters by name Gomathi, Velammal and Chidabarammal. Late Veerabadran Pandaran -s wife Sornavel Ammal is none other than the daughter of own sister of Velammal. Late Veerabadran Pandaram -s two sons and two sisters had predeceased him leaving their children. The children of late Veerabadran Pandaram -s deceased brothers and sisters are entitled to a share in his estate under Section 11 of the Hindu Succession Act, 1956. They are the heirs under entry 1V of Class II of the Schedule of the Hindu Succession Act, 1956. Along with the plaintiffs, the defendants late sister Gomathi -s sons who are alive namely, Mani, Balasubramanian and Arumugam and late Chidambrammal -s sons and daughters viz., Gopal, Pusparaj, Shenbagavalli, Kumaresan and Dhanasekaran are also the lawful heirs to the estate of the late Veerabadran. The plaintiff has not impleaded Gomathi and Chidambaram as parties to the suit, and hence, the suit is bad for non -joinder of necessary parties. The suit, as framed is not maintainable. After including all the necessary heirs only a suit for partition is maintainable. The plaintiff has no cause of action to file the suit. In respect of plaint schedule 3rd item, there is a society loan to the tune of Rs.30,000/ - was taken for the purpose of deepening the well. The suit is liable to be dismissed.