ANURADHA Vs. C R AMURTHA

JUDGEMENT

(1.) THE defendant has preferred the appeal challenging the judgment and decree dated 9. 3. 2004 made in O. S. No. 6189 of 2001 on the file of the Court of the Additional District Judge, Fast Track Court-IV, Chennai.

(2.) THE respondent herein filed the suit seeking for a preliminary Decree for division of the plaintiff's half share in the plaint 'a' and 'b' schedule properties by metes and bounds and to pay a sum of Rs. 1,19,000/- towards past mesne profits and future mesne profits at the rate of Rs. 5/- per sq. ft. till the date of handing over possession of the plaintiff's share in 'a' schedule property and for costs of the suit. Briefly, the case of the plaintiff is that her second son C. R. Vijayakumar expired on 13. 9. 1998 at Chennai leaving behind his wife Anuradha, the defendant, and his mother Amurtha, the plaintiff, as legal heirs and he had no issues and at the time of death, he possessed of a flat in which the defendant resides and the plots at Pillaipakkam village, Sriperumbudur taluk more fully described in the plaint schedule. According to the plaintiff, she as mother of the deceased, and the defendant as widow of the deceased are entitled to half share each in the estate of Late Vijayakumar. It is further stated by the plaintiff that the flat at Chennai, which is in the occupation of the defendant, is about 1400 sq. ft. and the plots at Sriperumbudur are about 9403 sq. ft. and the plaintiff issued notice to the defendant on 23. 4. 2001 requesting her to choose her convenience about 700 sq. ft. of the property in her enjoyment to enable the plaintiff to take possession of her share and also claimed damages for use and occupation of the portion belonging to the plaintiff and the defendant sent a reply through her Advocate on 2. 5. 2001 denying the right of the plaintiff to claim partition.

(3.) THE defendant in her written statement has stated that her husband Vijayakumar purchased the undivided interest of the land and got a flat constructed thereon and the flat was intended only for the defendant since they had no children and money for construction of the flat was incurred jointly by the defendant as well as her husband and it is not the exclusive property of the defendant's husband as alleged. It is further stated by the defendant that the plaintiff, who is living with her husband, has expressly disclaimed all right, title and interest in the said flat, which is in the sole occupation of the defendant, and hence, the property mentioned in Schedule 'a', namely, Flat, is not available for partition and it is the exclusive property of the defendant. It is further stated by the defendant that her husband owned plots in Sriperumbudur and as a measure of gesture and goodwill, the defendant told the plaintiff that she can have the plots for herself and leave the flat to the defendant and this is only by way of compromise and not by way of any right in favour of the plaintiff. It is further stated by the defendant that the plaintiff cannot claim to be joint possession of the flat since it is only in the use and occupation of the defendant and the plaintiff is not entitled to any damages for use and occupation. It is further stated by the defendant that her husband had taken out two insurance policies, one for Rs. 1,00,000/- and another for Rs. 50,000/-, and he had nominated his mother, namely, the plaintiff, as nominee with reference to the amount in the event of his death and the plaintiff, by virtue of said nomination, has collected the entire amounts and appropriated the same to herself and the plaintiff though a nominee is holding the amounts in trust for the legal heirs of the deceased and on that basis, the plaintiff is liable to pay Rs. 75,000/- together with interest at the nominal rate of 12% per annum to the defendant and the interest alone would come to Rs. 36,000/- and the plaintiff is liable to pay the defendant a sum of Rs. 1,15,000/- and the defendant is making a counter claim towards her share in the insurance policies taken by her late husband and pays the court fee for the same.