ABOORVAM Vs. KALAIMATHI

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree passed by the lower Court in O.S. No: 12 of 1998 dated 24.08.1998 by the 1st defendant. The brief facts submitted before the lower Court as per the pleadings of both parties are as follows :

(2.) THE lower Court had, after going through the evidence adduced before it, come to the conclusion of decreeing the suit as prayed for with costs against the 1st defendant. THE 1st defendant who was aggrieved by the said judgment and decree has preferred this appeal.

(3.) POINT Nos: 1 and 2 :- The dispute in between the parties namely the plaintiffs and the 1st defendant was in respect of the apportioning of the gratuity amount payable to the husband of the 1st plaintiff namely Pavadai. The plaintiffs, are the wife and the son of the deceased Pavadai. The 1st defendant is the mother of deceased Pavadai. The case of the plaintiffs 1 and 2 was that they were entitled to the gratuity amount and, therefore, they filed a suit seeking a declaration that they were entitled to the said amount and for consequential relief of injunction against the 1st defendant from in any way disturbing the plaintiffs from claiming the amount available with the defendants 2 to 5. The relationship of the deceased Pavadai with the plaintiffs 1 and 2 and the 1st defendant are not disputed in between them. The only point to be decided is whether the plaintiffs are solely entitled to the said benefit on the death of the deceased Pavadai. The lower Court had, after appraising the evidence. come to the conclusion that the 1st plaintiff (wife) the second plaintiff (son) and the 1st defendant (mother) are coming under Class I heir under 'The Hindu Succession Act' and had declared that all the three persons are entitled to the gratuity benefits of the deceased Pavadai payable on his death. The case of the plaintiffs and the evidence adduced thereon would disclose that the said deceased Pavadai died intestate and he had not executed any testimontary document for the future succession. It is not the case of the both parties that some other person is also living as the legal representatives of the deceased Pavadai. Therefore, the decision reached by the lower Court that the plaintiffs 1 and 2 and the 1st defendant were the legal representatives of the deceased Pavadai and were entitled to succeed the Estate of the deceased Pavadai are quite right. The gratuity amount payable on the death of the deceased Pavadai at the hands of the defendants 2 to 5 is also one among the estate and it is also liable to devolve on them equally. In such circumstances, the decision of the lower Court that the plaintiffs are not solely entitled to be declared as legal representatives but the plaintiffs 1 and 2 are entitled to two third only from and out of the gratuity amount need not be interfered. The remaining one-third share is admittedly payable to the 1st defendant. In such circumstances, it has passed the decree of declaration in respect of the two third share of the plaintiffs 1 and 2 and the consequent injunction was also granted only to that extent. However, the lower Court had come to a conclusion of decreeing the suit with costs. It has also awarded cost against the 1st defendant, the mother of the deceased. No doubt the mother is not actually disputing the entitlement of plaintiffs 1 and 2. However, it had awarded costs which is not found to be just. Under these circumstances, this Court is inclined to set aside the order passed by the lower Court in respect of awarding of cost against the 1st defendant. Therefore, it has become necessary to confirm the decision of decreeing the suit passed by the lower Court but the order passed by the lower Court in awarding cost alone is set aside. To that extent the appeal is also liable to be allowed.