LAWS(MAD)-2019-11-988

SEKAR Vs. GIRIJA @ GIRIGUJAMBAL

Decided On November 13, 2019
SEKAR Appellant
V/S
Girija @ Girigujambal Respondents

JUDGEMENT

(1.) The above second appeal was filed against the judgment and decree passed in A.S.No.2 of 2004 dated 03.09.2014 on the file of the learned II Additional District Judge, Thanjavur reversing the judgment and decree of the trial Court passed in O.S.No.32 of 1999 dated 10.10.2003, on the file of the learned Principal Sub Judge, Kumbakonam. The parties are referred in the same litigative status as in the trial Court.

(2.) The case of the plaintiff is that 'A' schedule property is an ancestral property of her father, Vaiyapuri and 'B' schedule property is the self acquired property. The plaintiff and the defendants are siblings. The plaintiff was married to one Veerasami with whom she had three children, viz., two sons and one daughter. Her husband deserted way back in the year 1977. From the date of desertion, she has been living in the care and custody of her father, who died leaving behind him surviving the plaintiff and the defendants as his legal heirs. The plaintiff has demanded partition from the first defendant. However, the first defendant has claimed right to the entire suit properties on the basis of a Will, which he claimed was executed by the father. The said Will was not produced. According to the plaintiff, the Will is a concocted one fabricated by the defendants. Therefore, she would contend that she is entitled to a 1/6th share in plaint A schedule property and a 1/3rd share in the B schedule property. The plaint A schedule property is the residential building. In this, the plaintiff is residing in the front portion and the first defendant is in the rear portion. She further prayed that the suit be decreed as prayed of.

(3.) The first defendant had filed a written statement inter alia denying the various allegations contained in the plaint and contending that as regards 'A' schedule property, the plaintiff is not entitled to a share in view of the fetter placed by Section 23 of the Hindu Succession Act. He would further contend that his father executed a Will on 15.08.1993, in which, the properties have been bequeathed in his favour. The first defendant would further contend that the execution of the Will was very well known to the plaintiff, despite which, she has filed the present suit.