R NARASIMHACHARI Vs. ANDALAMMAL DIED

JUDGEMENT

(1.) One Rangachariar, who died on 31-5-1955, left behind him surviving wife Andalammal and son Narasimhachari. Admittedly the properties possessed by the family were landed properties and one house property, which is the subject- matter of this litigation. In so far as the landed properties are concerned. they were sold at the instance of Andalammal, who is the plaintiff in the present suit, and Narasimhachari, the first defendant therein and others, who were interested, to third parties under Exs. B-1 to B-6. After the sale of such lands, apparently disputes arose between the mother and the son. Namakkal Panchayat Union was occupying the suit property. As demands for payment of rent were made both by the mother and the son, the tenant filed an application before the Rent Controller in H. R. C. O. P. 5 of 1969, marked as Ex. A.2, in the case, which was a petition under Section 9(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act, praying for directions from court as to in what manner and to whom the rents payable by it have to be paid. There was an allegation in that petition in paragraph 5 thereto that Andalammal was claiming half share in the rent payable by the Panchayat Union and that the tenant was advised that under the Hindu Succession Act, Andalammal was also entitled to half share in the house and as there was a counter-demand by the son Narasimhachari as well he had to file an application under Sec. 9(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act. To this, Narashimhachari filed a counter-statement wherein he would say 'the mother is not entitled to any share in the house as stated by the Panchayat Union. Even assuming that she is entitled to any share, she could file a suit for partition and damages for use and occupation against the son...............". The Rent Controller, however, could not decide the conflicting claims as between the mother and son and the parties therefore were referred to a civil suit so as to establish their respective title and the quantum of it in the suit property. The plaintiff therefore had to file as early as 1969 a suit, which was later numbered as O. S. No. 117 of 1972 on the file of the Subordinate Judge, Salem, for a declaration of her right to share in equal moieties in the suit property and for possession of the same. Having filed this suit, the plaintiff also filed the substantive suit, O. S. No. 389 of 1971, on the file of the same court claiming partition of the suit property and for possession of her share.

(2.) Before we refer to the pleadings in O. S. No. 389 of 1971, it would be convenient to refer to the evidence of Narasimhachari (1st defendant in O. S. No. 389 of 1971). According to Narasimhachari, his mother, the plaintiff, was never in possession of the suit house at any time and therefore she had no manner of right over the same. He would add that he was in possession of the property to the exclusion of his mother and therefore the suit for declaration does not lie. As we said, the present action was a comprehensive one for partition by the plaintiff-mother impleading her son as the first defendant and Namakkal Panchayat Union as the second defendant. After referring to the sale of the landed properties of the family, the plaintiff would say that she received a portion of the surplus consideration of such sale and that she handed over the same to the first defendant for re-investment and that the first defendant took up a hostile attitude after receipt of the said amount from her and drove her out and since then she was residing with her daughter at Srirangam and finding that her notice prior to the suit under Ex. A1 did not bear fruit she came to court for partition of the suit house and for separate possession of her share therein.

(3.) For the first time the 1st defendant would plead that long prior to the sale of the landed properties under Exs. B-1 to B-6, there was a family arrangement in the presence of panchayatdars. Dws and 3, whereby it was arranged inter alia that the plaintiff should receive a sum of Rs. 16800 from and out of the available surplus cash after paying the admitted debts of the family by sale of the landed properties and that on receipt of the said fund the plaintiff should relinquish her right, title and interest over the suit house and that no instrument of release was obtained by him because of this close relationship with the plaintiff. This defence, as we said, was never whispered earlier in the two sections which we referred to already.