DHANALAKSHMI Vs. K LOGANATHAN

JUDGEMENT

(1.) CHALLENGE is made to a preliminary decree made in C.S.No.1211 of 1992, a suit for partition.

(2.) THE defendants are the appellants. THE respondents/plaintiffs filed a suit, seeking division of the plaint schedule mentioned properties, claiming 1/5th share each with the allegations that they are the sons of Kabali Naidu and Dhanalakshmi, the first defendant in the suit that while the defendants 2 to 4 are their sisters and defendants 5 and 6 are their brothers that the suit property situate at No.515, Anna Salai, Vannia Teynampet, Madras-600 018, more fully described in the schedule to the plaint, originally belonged to Ranganayakiammal, the paternal grand mother of the plaintiffs and also defendants 2 to 6 that she died intestate on 24.08.1964 and thus, the properties devolved upon her husband Munuswamy Naidu and her only son Kabali Naidu that Munuswamy Naidu and his son Kabali Naidu enjoyed the said property without any division as their ancestral property by throwing in into the hotchpotch of Hindu Undivided joint family that it was never treated by them as their separate property, though they inherited the same through a female ancestor that the said Munuswamy Naidu died intestate on 22.2.1978 that his undivided half share in the property devolved upon his only son Kabali Naidu and thus, he became the full owner of the suit property that during the lifetime of Munuswamy Naidu, the plaintiffs and their father Kabali Naidu have created a registered mortgage in respect of the suit property in favour of George Town Co-operative Bank Limited, Madras and availed loan to improve the suit property that it was utilised for the construction of the property that the said Kabali Naidu died intestate on 3.3.1990 and the property devolved upon the plaintiffs, their mother, the first defendant and the defendants 5 and 6 that the plaintiffs, the first defendants and defendants 5 and 6 are equally entitled to have share, namely 1/5th share each in the suit property that the suit property was in the joint possession and enjoyment of the co-sharers that there are more than 20 tenants, from whom the income to an extent of Rs.60,000/- is derived that the first defendant, though collected the same in the past, has not given any share to the plaintiffs and that at the instigation of the other defendants, the first defendant has attempted to grab the property without giving due share to the plaintiffs and under these circumstances, there arose a necessity to file the suit.

(3.) ADVANCING arguments on behalf of the appellants, the learned counsel inter-alia raised only one submission, namely it is an admitted position that the property originally belonged to Ranganayakiammal by way of settlement and she is the paternal grand mother of plaintiffs and defendants 2 to 6 that it is an admitted position that she died intestate and thus, the property devolved upon her husband Munuswamy and when it came to the hands of Munuswamy, it was to be considered as a separate property that he also died intestate and on his death, all are entitled to have a share equally that though the learned Single Judge has found that no evidence has been adduced by the plaintiffs as to the factum of hotchpotch of Hindu Undivided Joint Family, he has stated that the circumstances would indicate that the property was actually thrown into the hotchpotch of Hindu Undivided joint family and that in the absence of any evidence, it should not have been held so.