P SUBRAMANIAN Vs. SUNDARAMBAL

JUDGEMENT

(1.) THIS Appeal has been preferred under Section 96 of CPC against the decree and judgment in O.S. No,33 of 1993, dated 7.4.1998, on the file of the Subordinate Judge, Ariyalur.)1. THIS Appeal has been directed against the judgment and preliminary decree in O.S. No,33 of 1993 passed by the Lower Court in favour of the plaintiff against the interest of the first defendant.

(2.) THE averments in the Plaint in brief relevant for the purpose of deciding this Appeal runs as follows:2(a). THE plaintiff and the first defendant are the daughter and son respectively of one Ponnusamy Asari through his second wife by name Rajalakshmi. THE second defendant is the first wife of the said Ponnusamy Asari. THE said Ponnusamy Asari married the said Rajalakshmi on 26.11.1956, during the life time of the 2nd defendant, even while her marriage with the said Ponnusamy Asari was subsisting. THE said Ponnusamy Asari developed the nucleus left by his father and the suit properties are the joint family properties of the said Ponnusamy Asari. THE suit properties consist of cultivable lands, with Motor Pump sets, houses, Cow yard Bank deposits.2(b). THE said Ponnusamy Asari expired on 13.6.1990. He died intestate, of course, the said Rajalakshmi, the 2nd wife of Ponnusamy Asari, also expired on 29.6.1992. It is submitted that the plaintiff is residing in the house that was constructed by the said Ponnusamy Asari himself. THE plaintiff was retained in the family fold of the said Ponnusamy Asari even after her marriage. It is submitted that the second marriage of the said Ponnusamy Asari was void as the Hindu Marriage Act, 1955 was in operation at the time of the said second marriage.2(c). THE first defendant is trying to appropriate all the properties that were left over by the said Ponnusamy Asari. THE first defendant has been trying to create an impasse by blocking the drainage of the plaintiff-s residence and also by cutting for the consumption of the plaintiffs family in her residential portions as mentioned above. THE electricity connection was obtained by the said Ponnusamy Asari. THE plaintiff objected to the cutting of the electric supply. But the first defendant paid no head to the wailings of the plaintiff. THE cutting of the electricity and the blockage of the drainage were made on 20.1.1991.2(d). In order to avoid complication and further problems, the plaintiff wants to cede out he share, in the properties left by the said Ponnusamy Asari. THE plaintiff and the defendants 1 & 2 have got equal share in the property left by the said Ponnusamy Asari. Though the exact quantum of deposits in the Bank is not readily available presently to the plaintiff, the plaintiff submits that she could be furnishing the details, if necessary, by means of an amendment to the Plaint. Since the plaintiff is not able at this juncture to give the exact quantum of deposits made by the first defendant as well as the said Ponnusamy Asari, she wants to reserve her right to furnish further details in respect of the same so as to enable the Court to make the decree complete one.2(e). In any event, the deceased Ponnusamy Asari had made Fixed Deposits and also Recurring Deposits in his own name under the name of his son, the first defendant, and his wife, the second defendant. After the demise of the said Ponnusamy Asari, the defendants 1 & 2 have converted those deposits in their names. THE deposits were made in the 3rd and 4th defendants - Banks. THEse deposits had been made only from and out of the funds that belonged to the joint family as described above.2(f). THE cause of action for the Suit arose on 30.1.1991 when the first defendant interfered in the enjoyment of the amenities of the plaintiff in his residential house in Kedakavattankurichi Village. Hence, the Suit.

(3.) THE third respondent has filed a written statement contending as follows: THE Plaint as framed is not maintainable. This defendant is an unnecessary party to this Suit. THE description of the property is vague. No deposit has been left by the deceased Ponnusamy Asari with 3rd defendant-Bank. THE first defendant-Balasubaramanian has deposited a sum of Rs.3,000/- in KDR 52/93 dated 8.3.1993 for a period of three years. As per the contract, the Bank is bound to pay the amount to the depositor on maturity. But, since the Suit has been filed, payment will not be made to the first defendant and the Bank will abide by the result of the Suit.