M.KARUPPANNAN Vs. MARIYAMMAL

JUDGEMENT

(1.) This second appeal arises out of the Judgment and Decree dated 22.06.2012 made in A.S.No.87 of 2010 passed by the learned Principal Subordinate Judge, Karur, reversing the Judgment and Decree dated 09.10.2009 in O.S.No.417 of 2005 passed by the learned Principal District Munsif, Karur.

(2.) Brief facts of the case is as follows:- The suit property originally belonged to one Rasu Pillai. The plaintiff is the wife of the said Rasu Pillai. The defendants 1 and 2 are the sons of said Rasu Pillai. The 3rd defendant is the wife of the deceased son of Rasu Pillai. After the death of Rasu Pillai, the plaintiff and defendants 1 to 3 are jointly in possession and enjoyment of the suit property. The plaintiff is entitled to 1/4th share in the suit property. The defendants 4 and 5 have no right in the suit property. The defendants 4 and 5 are attempting to create false and frivolous documents after the death of the Rasu Pillai over the suit property and the said documents if any will not bind upon the plaintiff. There is no possibility for joint possession and enjoyment of suit property. The plaintiff demanded partition, but the defendants 1 to 3 are evading the same and also trying to disturb the possession of the plaintiffs. Hence, the plaintiff was constrained to send legal notice dated 05.04.2005 to the defendants demanded partition of the suit property. Even then, the defendants refused to come forward for partition. Hence, the plaintiff has come forward with the suit for partition of her 1/4th share in the suit property.

(3.) On the other hand, the defendants 1 to 3 and 6th defendants set ex-parte. The 4th defendant filed the separate written statement and stated that the plaint allegations are all false. The said Rasu Pillai proposed to sell the suit property to the 4th defendant for a sum of Rs.15 lakhs and agreed to sell the same and received Rs.15 lakhs from the 4th defendant and executed a power of attorney on 08.03.2004. To avoid stamp duty and registration charges, the 4th defendant obtained power of attorney from the said Rasu Pillai and also obtained receipt for Rs.15 lakhs. The above said facts are known to the plaintiff and the defendants 1 to 3. On the date of power of attorney, the possession of the suit property was handed over to the 4th defendant. Before execution of power of attorney, the said Rasu Pillai already executed a Will in favour his two sons. The said Will was cancelled by Rasu Pillai on 05.03.2004. Subsequently, on 27.01.2005, the 5th defendant had offered to purchase the suit property for a sum of Rs.6,97,300.00 from the 4th defendant. As such, the 4th defendant received a sum of Rs.2,97,300.00 from the 5th defendant and agreed to recover the balance within one or two days and accordingly received cheque from the husband of the 5th defendant and executed a sale deed on 27.01.2005 in the name of the 5th defendant. The husband of the 5th defendant asked the 4th defendant to retain the original sale deed till the cheque amount was received by the 4th defendant. However, the said cheque was bounced. Hence, the 4th defendant filed the criminal case against the husband of the 5th defendant in C.C.No.3 of 2006. As such, at the instigation of the defendants 5 and 6, the plaintiff and the defendants 1 to 3 colluded together and falsely filed the suit against the defendants. Hence, the suit has to be dismissed.