W S RAJASEKAR Vs. W S RANI

JUDGEMENT

(1.) THE unsuccessful plaintiff is the appellant herein. O. S. No. 3544 of 1998 on the file of the Additional District and Sessions Judge (Fast Track Court-IV), chennai was filed by the appellant herein for : 1) a declaration that the appellant/plaintiff was entitled to half share in the suit 'a' schedule property, 2) a decree for partition directing the division of suit 'a' schedule property into two shares and allotting one such share to the appellant/plaintiff and also for putting him in possess of the share to be allotted to him and 3)for cost of the suit.

(2.) THE first respondent/first defendant (since deceased) is the sister of the appellant herein/ plaintiff. The second respondent/second defendant is the son of the first respondent/first defendant. The suit claim was made by the appellant based on his contention that suit 'a' schedule property was purchased under a document registered as document No. 257/1965 in the Office of the Sub-Registrar, Triplicane, Chennai by Mrs. M. K. Mohanambal, the mother of the appellant and the first respondent; that the said Mohanambal was in possession and enjoyment of the suit 'a' schedule property till her death on 04. 10. 1989; that her husband W. S. Sivabushanam (father of the appellant and the first respondent) pre-deceased Mohanambal and that after the death of Mohanambal the appellant and the first respondent became entitled to equal moieties as her legal heirs. The appellant/plaintiff contended further that the appellant was occupying the first floor whereas the first defendant was occupying the ground floor; that a tiled structure on the rear side of the main building, a Bombay terraced second floor and a shop portion in the front portion of the main building in the ground floor had been let out to the tenants and that though the defendants had been collecting the rent from the tenants, they failed to give the share of the appellant/plaintiff in the rental income. It was also his contention made in the plaint that due to hardships and deprivation caused by the respondents/defendants and their family members which led to frequent family quarrels between the two families, he was constrained to file the suit for declaration, partition and other reliefs.

(3.) THE deceased first respondent/first defendant did not file any separate written statement. On the other hand, she adopted the written statement of her son, namely the second respondent/second defendant. It was admitted in the written statement by the first and second respondents/defendants that the suit property was a self-acquired one of Mrs. M. K. Mohanambal (the mother of the plaintiff and the first defendant) and that she died intestate on 04. 10. 1989. But the plaint allegation that the husband of Mohanambal predeceased her was disputed and it was contended that the husband of Mohanambal died on 27. 12. 1990. However, it was admitted that the deceased first respondent and the appellant/plaintiff became entitled to equal moieties in the suit 'a' schedule property. It was contended by them that the half share of first respondent/first defendant was settled by way of a registered settlement deed dated 13. 01. 1997 in favour of the second respondent/second defendant. However, it was contended further in the written statement that the plaintiff, who was one of the directors of Lifeguard Medical Diagnostic Centre Private Ltd. , wanted a Power of attorney from the respondent 1 and 2/defendant 1 and 2 in respect of the properties inherited by them from W. S. Sivabushanam (the father of the appellant and the first respondent) in favour of K. L. Jayakumar, Chairman cum Managing director of the said company so as to enable him to give the said properties as security for raising loan for the business of Lifeguard Medical Diagnostic centre Private Ltd. ; that the respondents gave such deeds of Power of Attorney in favour of one K. L. Jayakumar, son of K. Loganathan, who is the director of the company; that the respondent 1 and 2/defendant 1 and 2 did so in consideration of the appellant's relinquishment of his right to half share in the suit property and that after such relinquishment, the appellant/plaintiff became a permissive occupant of the first floor in the suit property. It was also contended by the defendants in the written statement that such a relinquishment was oral; that having relinquished the share, the appellant/plaintiff was estopped from making any claim in respect of the suit property and that hence the suit for declaration, partition and other reliefs should be dismissed.