S MARAGATHAM Vs. S SHANMUGARAJ

JUDGEMENT

(1.) THE case of the plaintiff as set out in the plaint is as follows:- THE Plaintiff and the Defendants 1 and 2 are the children of late K.T.Sambandam, who died intestate on 16.4.1998 at Madras and they are Hindus and governed by the Hindu Succession Act. THE said K.T.Sambandam had worked as the Assistant Director of Small Industries Services Institute, Guindy, Chennai-32 and he died leaving behind his Wife S.Sakuntala, Daughter Maragatham, the Plaintiff herein and two sons, the Defendants 1 and 2 herein as his legal heirs. Ex.P1 is the legal heir certificate dated 10.6.1998. His wife also died intestate on 14.5.1998. Item (1) of the suit property is the dwelling house and item (2) is a piece of vacant land. K.T.Sambandam had no ancestral property and purchased the said item (1) of the suit property under sale deed dated 19.7.1985, Ex.P2 and item (2) under sale deed dated 11.7.1973, Ex.P3, from and out of his own earnings. THE Plaintiff got married in the year 1985 to one G.Balasubramaniam, who is an Engineer by profession and at the time of their marriage, no dowry and costly gifts were given, as her father believed in discipline. THE Plaintiff is living with her husband and her children in the Flat, which was purchased by her from and out of her own earnings and the financial assistance given by her husband. Since, she was a working woman, she kept all her jewels and that of her children, weighing more than 40 sovereigns in the house of her parents and she used to take those jewels from her parents house, as and when she needed. Till the death of her parents, the jewels were in their custody and she had not removed them from the house. However, she had not included the jewels as a subject matter of the suit. Since her father and mother died intestate, she is entitled to 1/3rd share in the suit properties. She made several requests to the Defendants 1 and 2 for settlement of her claim over the suit properties and for amicable division of assets of their late father, but the Defendants herein are not willing to give the due share to the Plaintiff and are raising all sorts of untenable and unreasonable contentions. THErefore, the Plaintiff had sent a legal notice dated 17.2.1999 to the Defendants 1 and 2 under Ex.P4, for which the Defendants 1 and 2 also issued a reply dated 20.2.1999 under Ex.P5. As she is the co-owner of the suit properties, she is deemed to be in joint possession of the suit properties and the possession of the Defendants 1 and 2 is deemed to be on behalf of the Plaintiff as a co-owner. Since the Defendants 1 and 2 are not willing to give the due share to the Plaintiff, she has come forward with this suit, claiming her 1/3rd share in the suit properties.

(2.) THE case of the Defendants 1 and 2 herein as set out in the Written Statement is as follows:-THE fact that the suit properties are self-acquired properties of the father of the Plaintiff and the Defendants herein is admitted. But, even during his life time, he had made oral partition, by allotting item (1) of the suit properties to the Defendants 1 and 2, who were put in possession in pursuance of the said oral partition and they are in occupation of the same even during the life time of their father and they continue to reside in the dwelling house, i.e. item (1) of the suit properties, with their families. In the said oral partition, the Plaintiff was allotted the item (2) of the suit properties. THE Plaintiff got married in the year 1985 and she is residing with her husband separately from that time onwards. As the Defendants 1 and 2 are the only two male members of the family of late K.T.Sambandam and since they are in continuous possession of the item (1) of the suit properties, the Plaintiff is not entitled to claim for any partition of the same, in view of Section 23 of the Hindu Succession Act, 1956 (herein after referred to as the Act). Further, pursuant to the oral partition, the Defendants had agreed among themselves to divide the item (1) of the suit properties in such a manner, so as to enable the 1st Defendant to occupy the Ground Floor and the 2nd Defendant to occupy the First Floor. In view of Section 23 of the Act, the Plaintiff suffers from legal incapacity to maintain the suit. THEir father gave good education to the Plaintiff and now, she is employed in a private concern. THE contention of the Plaintiff that she kept the jewels in the safe custody of the Defendants is an imaginary fiction, just made to claim a benefit out of that statement in this case. THE Plaintiff never demanded for settlement of her claims and at the instigation of her husband, she has come forward with this suit for partition. Without the knowledge of the Defendants 1 and 2, she has obtained the death certificate and the legal heir certificate, only with a mala fide intention to file the present suit, just to harass the Defendants and to defeat the oral partition made by their father and the Plaintiff is not justified in claiming a share in the item (1) of the suit properties and item (2), being a small piece of vacant, cannot be divided into shares as claimed by the Plaintiff and the Plaintiff has no cause of action and hence, the suit is liable to be dismissed.

(3.) WHETHER the Plaintiff is entitled to mesne profits from the date of plaint for use and occupation of A-Schedule property?. 4. On the side of the Plaintiff, the Plaintiff examined herself as PW.1 and marked as many as six documents as Exs.P1 to P6. On the side of the Defendants 1 and 2, The 1st Defendant herein examined himself as DW.1 and examined one V.Udayakumar as DW.2 and marked as many as ten documents as Exs.D1 to D10. 5. Issues (a) to (c):- The Plaintiff claims 1/3rd share in the suit properties, since her father died intestate on 16.4.1998 and her mother died on 14.5.1998, leaving behind the Plaintiff and the Defendants 1 and 2 as his legal heirs. She has stated that in spite of the demand, the Defendants 1 and 2 are evading to effect partition, which necessitated her to issue a legal notice dated 17.2.1999 under Ex.P4, for which the Defendants sent a reply notice dated 20.2.1999 under Ex.P5.