SIVASAMY Vs. POOMALAI

JUDGEMENT

(1.) ONE unfortunate Masi Ambalam died on 01.11.1987. We do not know whether his end came by fair means or foul. It is evident that the parties herein including his only daughter were more interested in the suit properties than him.

(2.) THE plaintiff, who is the first respondent, is the daughter of Masi Ambalam. She filed the suit for injunction and declaration that she is the owner of 'A' schedule property, for partition of 'B' schedule property and for injunction and alternatively for possession. Her mother pre-deceased her father. THEre was no other issue. Masi Ambalam died intestate. THE plaintiff learnt that her father was abducted by the third defendant on 08.09.1987 and later he was reported to have died on 01.11.1987, allegedly killed by the third defendant and his henchmen. As the sole legal heir of Masi Ambalam, the plaintiff performed the Karumadi on 16.11.1987 at Tiruvayyaru. THE plaintiff had also given a complaint to the Sub-Inspector of Police, Thiruvonam regarding the abduction. Masi Ambalam was in possession of the suit property till his death and after his death, the plaintiff went and took possession of her father's property. THE plaintiff claimed half share in suit 'B' schedule 25 to 30,32,34,36,37,39 and 44 and 45. According to her, the defendants 1 to 5 have no title. THE defendants 1 to 3 are the sons of the fourth defendant through her deceased husband one Malayappan. THE fifth defendant was associating herself with Masi Ambalam for some time. She was not a permanently kept concubine of Masi Ambalam. In 1986 Masi Ambalam was very old and afflicted with blood pressure and other ailments. So, the plaintiff made a publication in Dinamalar claiming her right and stating that some persons were taking advantage of the old-age of her father to create certain documents. THE plaintiff understood that some persons like defendants 1 to 5 in the name of Masi Ambalam belatedly published a repudiation in Dinamalar on 01.10.1986. THEre was no marriage between Masi Ambalam and the fifth defendant. THE sixth defendant is an agnate of Masi Ambalam. THE plaintiff claimed that she was entitled to all the properties mentioned in Plaint 'A' schedule and half undivided share in 'B' schedule along with the sixth defendant.

(3.) THE learned counsel appearing for the appellants/defendants submitted that there is enough evidence to show that the fifth defendant got married to Masi Ambalam in 1946. THEre is the birth certificate Ex.B.87 of the son born to Masi Ambalam and the fifth defendant, which shows that the names of father/mother are Masi Ambalam and Lakshmi. Letters have been produced to show that Masi Ambalam had treated Lakshmi as his wife and the learned counsel also relied on 1987(1) MLJ 149 (Seerangamal v. Venkatsubramanian) and AIR 1978 SC 1557 (Badri Prasad v. Dy. Director, Consolidation) to support his case.