IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.7.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.215 of 1996 and A.S.No.266 of 2000 N.Jayalakshmi .. Appellant in both appeals Plaintiff and 2nd Defendant -vs- 1. M.Ganapathy 2. Radhakrishnan 3. Thiagarajan 4. Bala @ Balakrishnan 5. Ramesh 6. Rajalakshmi 7. Devaki Ammal 8. Karikal Valavan @ Karikalan 9. Amutha 10.Muthulakshmi 11.Govindasamy Respondents 3 to 11 impleaded as respondents 3 to 11 in A.S.No.215/1996 as per order of the Court in C.M.P.No.4957/2002 dated 3.12.2002 .. Respondents in A.S.No.215/1996 Defendants and Third Parties 1. Thiagarajan 2. Bala @ Balakrishnan 3. Ramesh 4. Ganapathy 5. Rajalakshmi Ammal 6. Devaki Ammal 7. Karikal Valavan 8. Amutha 9. Muthulakshmi 10.Govindaswamy ..Plaintiff and 1st Defendant and Nil Respondents 5 to 10 impleaded as Respondents as per order dated 3.12.2002 made in C.M.P. Nos.4956 and 4957/2002 Respondents in A.S.No.266/2000 https://hcservices.ecourts.gov.in/hcservices/ A.S.No.215/1996 is filed against the Judgment and decree dated 22.9.1995 made in O.S.No.31/90 on the file of the Court of Subordinate Judge, Nagapattinam and A.S.No.266 of 2000 is filed against the Judgment and decree dated 24.3.2000 made in O.S.No.74 of 1997 on the file of the Court of Subordinate Judge, Nagapattinam . For appellant : : Mr.P.Srinivasan, Advocate For respondents : : Mr. V.Raghupathy,Advocate for Ms. G.Devi,Advocate R1,R3 to R5,R11/R1 to R4 and R10 in A.S.No.266/2000 R2-NDW R6 to R10 -No appearance R5 to R9-No appearance COMMON JUDGMENT A.S.No.215/1996 has been directed against the decree and Judgment in O.S.No.31 of 1990 on the file of the Court of Subordinate Judge, Nagapattinam. A.S.No.266 of 2000 has been directed against the decree and Judgment in O.S.No.74 of 1997 on the file of the Court of Subordinate Judge, Nagapattinam. 2. The admitted facts in both the appeals are that Mahalingam and Rajammal had three daughters and one son viz., Kamalambal, Vedambal, Jayalakshmi and one Ganapathy. It is further admitted that another son of the said couple Mahalingam and Rajammal died unmarried. One of the daughters by name Jayalakshmi, the plaintiff in O.S.No.31 of 1990, the first defendant in O.S.No.74/1997 is the sister of Ganapathy. The children of the said Ganapathy have filed O.S.No.74 of 1997, against their father's sister, Jayalakshmi( plaintiff in O.S.No.31 of 1990(their aunt). O.S.No.31 of 1990 was filed by Jayalakshmi for partition of half share in the plaint schedule properties. The plaintiffs in O.S.No.74 of 1997 have filed the said suit for partition of their 3/4th share in each item of the plaint schedule properties to the plaint in O.S.No.74 of 1997. The plaint "A" schedule property, Item No.1 to IV in O.S.No.74 of 1997 are the plaint item Nos. 1 to IV in O.S.No.31 of 1990. "B" schedule property to Ex A1 partition deed dated 24.4.1970, entered into between the mother Rajammal and her son, Ganapathy( D1 in both the suits) is the plaint "B" schedule property in O.S.No.74 of 1997. 3. The averments in the plaint in O.S.No.31 of 1990 sans irrelevant particulars are as follows: The plaint schedule property in O.S.No.31 of 1990 originally belonged to the father of the plaintiffs and first defendant Mahalingam Pillai who died intestate leaving behind his wife Rajammal, plaintiff Jayalakshmi, first defendant besides two daughters by name Kamalambal and Vedambal who got married even when Mahalingam was alive and they were living in their respective husband's house. The plaintiff is a spinster. The plaintiff was living with her father and mother at the plaint schedule Item No.1 house at Thiruvarur. The first defendant was also living with his parents in the same house. Mahalingam Pillai died in the year 1940. Rajammal and her son, first defendant were https://hcservices.ecourts.gov.in/hcservices/ in possession and enjoyment of the property of Mahalingam Pillai as legal heirs. At the time both plaintiff and other two daughters have no right in the property of Mahalingam Pillai. Mahalingam Pillai died intestate Rajammal and her son Ganapathy(first defendant) were in possession and enjoyment of ½ share each in the plaint schedule property after the Act 30/56 (Hindu Succession Act 1956) came into force Rajammal became absolute owner for ½ share in the plaint schedule property as the legal heir of her husband Mahalingam Pillai. On 24.4.1970, the first defendant Ganapathy and his mother Rajammal entered into a deed of partition under which "B" schedule property was allotted to Rajammal since Rajammal and her son Ganapathy were in joint possession of the plaint schedule property, Rajammal had filed O.S.No.791 of 1981 before the District Munsif's Court, Mannargudi for recovery of possession of her ½ share under the said partition deed dated 24.4.1970 and got an exparte decree on 20.12.1983. Accordingly, Rajammal got possession of her ½ share in the property scheduled as "B" schedule to partition deed dated 24.4.1970. The plaint schedule is the self acquired property of Mahalingam Pillai . After his death, Rajammal and first defendant were in possession and enjoyment of the plaint schedule property jointly. Rajammal was residing in the plaint Item No.1 house till her death. In another portion of the same house, the first defendant was residing with her mother. Out of love and affection, Rajammal had executed a Will dated 9.3.1983 in respect of ½ share of the property which she got under the partition deed dated 24.4.1970 in favour of the plaintiff and the said Will was registered on 12.3.1983 before the Sub Registrar, Thiruvarur. Under the said Will dated 9.3.1983, Rajammal had revoked her earlier Will dated 16.7.1980. Under the said Will Rajammal had bequeathed the plaint schedule properties as well as the immovable properties including 20 sovereigns of gold ornaments. Rajammal died on 10.8.1984, in Item No.1 of plaint "A" schedule property itself. After her death, the Will dated 9.3.1983 came into force. The second defendant is the tenant in the plaint Item No.2 property under the first defendant. Of late, the first defendant is interfering with the peaceful possession and enjoyment of ½ share of the plaintiff in the plaint schedule property. The plaintiff issued notice to the first defendant on 17.1.1985. Even after the receipt of the said notice , the first defendant has not chosen to send any reply. Hence the suit for partition of plaintiff's ½ share in the plaint schedule property. 4. The first defendant in his written statement would contend that the plaintiff has no right of possession in respect of the plaint schedule property and she was never in enjoyment of the plaint schedule property. The plaint schedule property is the ancestral property of Mahalingam Pillai. Mahalingam Pillai died in the year 1939. After his death, the first defendant became entitled to the suit property. The first defendant is in possession and enjoyment of the suit property and he was paying tax to the suit property. Even Rajammal , the mother had no right or title in respect of the plaint schedule property. The plaintiff never resided in the plaint Item No.1 "A" schedule property. After the death of Mahalingam Pillai in the year 1939 neither Rajammal nor the plaintiff had derived any interest or tittle in respect of the plaint schedule property. Rajammal herself was not entitled to half share in the suit property. Rajammal was never in possession and enjoyment of ½ share in the suit property. Under Act 30 of 1956, https://hcservices.ecourts.gov.in/hcservices/ Rajammal had not derived any title. In the partition deed entered into between Rajammal and the first defendant dated 24.4.1970, the plaint schedule property was left to be included. Rajammal filed O.S.No.439 of 1982 for the relief of right of residence in Item No1 house only against this defendant. On 7.1.1984 a decree was passed granting right of residence alone in favour of Rajammal in the said house. Rajammal herself had not asked for any partition of ½ share in the said suit. So the plaintiff is estopped from claiming any right of partition of ½ share in the plaint schedule property under the alleged Will executed by Rajammal. The appeal preferred against the decree and Judgment in O.S.No.439 of 1982 as A.S.No.61 of 1984 before the District Court, Nagapattinam was also disposed of declaring that the first defendant has got full right in the suit property. Even in the suit filed by Rajammal before the District Munsif, Mannargudi in O.S.No.791 of 1981 also she has not claimed any partition of the plaint schedule properties. The plaintiff never resided with her mother in the plaint schedule Item No.1 house. Rajammal died at the age of 80 even two years prior to her death, she was bed ridden and she was not in a sound disposing state of mind to execute the alleged Will dated 9.3.1983 in favour of the plaintiff . The said Will was a concocted,forged and created for the purpose of this case. The said Will dated 9.3.1983 never came into force. Rajammal herself has no right to execute the said Will in respect of the suit properties. The first defendant has not received any notice from the plaintiff in the suit. The plaintiff is a Court bird. The plaintiff has also filed another suit for maintenance in O.S.No.91 of 1976 before the Sub Court, Nagapattinam and also got a decree for maintenance from this defendant. The suit is bad for non joinder of parties like other two daughters of Rajammal. The court fee paid in the plaint is not correct. Hence the suit is liable to be dismissed. 5. The first defendant in his additional written statement would contend that in or about 1960, the first defendant had renovated suit Item No.1 house by spending Rs.40,000/- Further in the year 1961, he has also put up additional construction by spending Rs 5,000/- on the backyard of suit Item No.1 House. The second defendant remind exparte. 6. On the above pleadings, the learned trial Judge has framed as many as 14 issues for trial. The plaintiff has examined herself as P.W.1 besides examining one Dhakshinamurthy as P.W.2, an attestator to Ex A2 Will dated 9.3.1983. On the side of the plaintiff Exs A1 to Ex A3 were marked. The first defendant has examined himself as D.W.1 besides examining one Swaminathan as D.W.2 .Exs B1 to B13 were marked on the side of the defendants. 7. The averments in the plaint in O.S.No.74 of 1997 in brief runs as follows: The plaint schedule properties in O.S.No.74 of 1997 are ancestral properties of the plaintiffs' grand father Mahalingam Pillai who was in possession of the plaint schedule properties till his life time. He married one Rajammal and died in the year 1941 leaving behind him three daughters by name Kamalambal, Vedambal and Jayalakshmi ( Second defendant) and one son by name Ganapathy(first defendant). The other son of Rajammal died before marriage. The other two daughters Kamalambal and Vedambal were married prior to 1940. Since they got married prior to 1940, they are not entitled to any right in the suit https://hcservices.ecourts.gov.in/hcservices/ property and hence they were not impleaded as parties in the suit. Under the law that was in vogue, the female heirs have no right except the right of residence and maintenance till their marriage. After their marriage, they severed all connections with Mahalingam Pillai and his family . The first defendant Ganapathy is only the competent male heir of Mahalingam Pillai entitled to succeed the estate of deceased Mahalingam Pillai. The second defendant is not entitled to claim any share in the suit property. She has claimed only maintenance against the first defendant in O.S.No.91 of 1976 of Sub Court, Nagapattinam. The second defendant has also filed a suit for her residence in the first item of suit property in O.S.No.439 of 1982 in District Munsif's Court at Thiruvarur and her claim was negatived. Hence, the second defendant cannot claim any share in the suit property . The plaintiffs are the sons of the first defendant and grand sons of late Mahalingam Pillai. The plaintiffs are collectively entitled to 3/4th share in each item of the suit properties,while the first defendant is entitled to 1/4 share in all items of suit properties. Rajammal also died on 10.8.1994 at Thiruvarur. She has no right in the suit property except right of residence and maintenance. Along with the second defendant, she filed a suit for her residence in O.S.No.439 of 1982 in the District Munsif Court at Thiruvarur and she obtained decree only for her residence in the first item of suit property. It is learnt that she colluded with first defendant herein has created a partition deed dated 24.4.1970 with regard to landed properties alone as if she got legitimate half share in them. Under law she is incompetent to claim any share in the ancestral joint family properties. She can claim right of residence and maintenance till her life time. Under the alleged Will, she cannot claim any right in respect of the suit property under Rajammal. Rajammal colluding with the first defendant has filed a suit for recovery of possession of plaint "B"schedule property through the second defendant as her power agent in O.S.No.983 of 1982 in District Munsif's Court at Mannarkudi. The first defendant has allowed the suit to be decreed exparte on 20.12.1983. Plaintiffs are not parties to the said suit and the decree passed in O.S.No.793 of 1981 will not bind the plaintiffs. Plaintiffs on 20.11.1996 approached the first defendant and demanded for partition amicably in all the items of suit properties in the presence of some of important persons of Thiruvarur. But the first defendant is evading for amicable partition till date. The plaint "B"schedule properties are being cultivated by these plaintiffs. The second defendant is trying to snatch away the paddy with the assistance of her henchmen . Hence the suit for partition of ¾th share in the plaint schedule property. 8. The first defendant in his written statement would contend that the plaint schedule properties are the ancestral and undivided joint family properties. The first defendant's father was in enjoyment of all suit properties till his life time and there was no partition effected during his life time. He died leaving behind his only surviving son- Ganapathy, his daughters and wife. The other daughters have married even prior to 1940 . The second defendant is his unmarried daughter who filed suit for her maintenance along with her mother and the same is decreed and she is getting maintenance. The said Rajammal had no right in the suit property and the Will executed by her in favour of the second defendant is invalid. The second defendant has no manner of right https://hcservices.ecourts.gov.in/hcservices/ in the suit properties at any point of time. The first plaintiff is cultivating the plaint schedule property lands and also paying land tax regularly to the Government. Neither Rajammal nor the second defendant have any right , title or interest in respect of the plaint schedule properties. Rajammal along with the second defendant have filed a suit for maintenance and right of residence before the District Munsif's Court, Thiruvarur. In the said suit, it was held that Rajammal had only right of residence and maintenance on the charge of the suit properties. She has no manner of right in the suit properties. This defendant is entitled to 1/4th share in all the items of the suit properties. This defendant has no objection to pass preliminary decree in favour of the plaintiffs for their 3/4th share in the suit properties. 9. The second defendant in her written statement would contend that the plaintiffs are the sons of the first defendant and the suit was filed by the plaintiffs at the instigation of the first defendant. Only to deceive this defendant, the plaintiffs have filed this vexatious suit at the instigation of their father, first defendant. The second defendant is the sister of the first defendant and she is the daughter of late Mahalingam Pillai. Till now the second defendant is living as a spinster. This defendant is equally entitled to a share to that of the first defendant, the father of the plaintiffs. Rajammal died on 10.8.1984. Before her death, Rajammal had executed a Will in respect of her 1/2th share which she got under the partition between herself and the first defendant herein. Accordingly, the second defendant after the death of Rajammal is in possession and enjoyment of ½ of the properties of Rajammal and enjoyment of the same, after paying the land tax. There was a partition entered into between the first defendant and Rajammal in the year 1970 itself . At the time of the said partition, these plaintiffs have not even born. Without including the properties allotted to the first defendant in the said partition deed, the present suit filed for partition by the plaintiffs is not maintainable. The suit for partial partition is not maintainable. The plaintiffs have no cause of action to file this suit. Hence the suit is liable to be dismissed. 10. On the above pleadings, the learned trial Judge has framed as many as six issues for trial . First plaintiff has examined himself as P.W.1 and one Kumar was examined as P.W.2. On the side of the plaintiffs Exs A1 to A5 were marked. The second defendant alone was examined as D.W.1 and Exs B1 to B14 were marked on the side of the defendants. The learned trial Judge after meticulously going through the evidence both oral and documentary on record, and also after hearing the submissions made by the learned counsels on both sides, have disposed of O.S.No.31 of 1990 and O.S.No.74 of 1997. O.S.No.31 of 1990 was dismissed by the learned Subordinate Judge, Nagapattinam and in O.S.No.74 of 1997, the learned Trial Judge has passed a preliminary decree for partition in favour of plaintiffs 1 to 3 and also passed a preliminary decree for 1/4th share of the first defendant but the said decree was passed subject to the charge of maintenance in favour of the second defendant. Aggrieved by the findings of the learned trial Judges, the plaintiff in O.S.No.31 of 1990 has preferred A.S.No.215 of 1996 and the second defendant in O.S.No.74 of 1997 has preferred A.S.No.266 of 2000. https://hcservices.ecourts.gov.in/hcservices/ 11. Now the points for determination in these appeals are as follows: i) Whether the plaintiff in O.S.No.31 of 1990 Jayalakshmi who is the second defendant in O.S.No.74 of 1997 has derived any right title in respect of the plaint schedule properties, under Ex A2 Will dated 9.3.1983(O.S.No.31/1990)? 2) Whether the partition deed dated 24.4.1970 entered into between the first defendant in O.S.No.31 of 1990 who is the first defendant in O.S.No.74 of 1997 also and his mother Rajammal will bind the plaintiff in O.S.No.31 of 1990( second defendant in O.S.No.74 of 1997)? 3) Whether the decree and Judgment in O.S.No.31 of 1990 on the file of the Court of Subordinate Judge, Nagapattinam is liable to be set aside for the reasons stated in the memorandum of appeal in A.S.No.215 of 1996? 4) Whether the decree and Judgment in O.S.No.74 of 1997 on the file of the Court of Subordinate Judge, Nagapattinam is liable to be set aside for the reasons stated in the memorandum of appeal in A.S.No.266 of 2000? 12. Point Nos.1 and 2: There is three cornered contest in these appeals. One of the daughters of Mahalingam Pillai and Rajammal viz.,Jayalakshmi has filed the suit in O.S.No.31 of 1990 claiming ½ share in the plaint schedule property to the plaint in O.S.No.31 of 1990 on the basis of Ex A2 Will dated 9.3.1983 executed by her mother Rajammal, who admittedly died on 10.8.1984. Ex A3 in O.S.No.31 of 1990 is the death certificate of Rajammal. So it is clear from Ex A3 in O.S.No.31 of 1990, the mother of the plaintiff in O.S.No.31 of 1990(second defendant in O.S.No.74 of 1997) and the first defendant in O.S.No.31 of 1990 who is the first defendant in O.S.No.74 of 1997 died on 10.8.1984, subsequent to the Hindu Succession Act 1956 came into force. The plaintiff in O.S.No.31 of 1990 Jayalakshmi, one of the daughters of Rajammal claims ½ share in the plaint schedule property to O.S.No.31/1990 on the basis of a Will dated 9.3.1983 executed by Rajammal in favour of the plaintiff in O.S.No.31 of 1990. To prove the said Will, one of the attestators to the Will viz., Dhakshinamurthy was examined as P.W.2. But the learned trial Judge has rejected the evidence of P.W.2 attestator on the ground that his evidence cannot be believed. Even though in the chief examination P.W.2 in O.S.No.31 of 1990 would depose that he saw while Rajammal signing Ex A2 Will, in the cross examination, he would categorically admit that he is not aware when Rajammal had signed in the Will. A perusal of Ex A2 in O.S.No.31 of 1990 Will also go to show that P.W.2 Dhakshinamurthy was not an identifying witness before the Sub Registrar. The witness who has signed before the Sub Registrar identifying Rajammal was not examined. According to P.W.2 , Ex A2 Will was executed by Rajammal in her house on 9.3.1983 but he is not aware when Rajammal had signend in Ex A2 Will. He has further deposed that he is not aware who gave instructions for preparing Ex A2 Will. He would depose that other https://hcservices.ecourts.gov.in/hcservices/ attestator to Ex A2 Will viz., Udayappa Chettiar signed in Ex A2 Will as a witness before he could sign as an attestator in Ex A2 Will. That is why the learned trial Judge has come to a conclusion that on the basis of the evidence of P.W.2,Dhakshinamurthy , we cannot come to a conclusion that Ex A2 Will was executed by Rajammal and that the said Will was not proved as per the provisions of Section 68 of the Evidence Act. Even though, the plaintiff in O.S.No.31 of 1990 is not entitled to ½ share under Ex A2 Will, we have to consider whether as a legal heir of Rajammal, the mother, whether the plaintiff is entitled to any share in the plaint schedule properties. Admittedly, Rajammal died on 10.8.1984. If Ex A2 Will goes , we have to construe that she died intestate . Under such circumstances, under Section 15 of the Hindu Succession Act 1956, the plaintiff in O.S.No.31 of 1990 will be entitled to a share to that of the other legal heirs of Rajammal. Section 15 of the Hindu Succession Act 1956 reads of follows:- "(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16,- a) Firstly, upon the sons and daughters( including the children of any pre-deceased son or daughter) and the husband; b) secondly, upon the heirs of the husband; c) thirdly, upon the mother and father; d) fourthly, upon the heirs of the father; and e) lastly, upon the heirs of the mother (2) Notwithstanding anything contained in sub-section (1),- a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased( including the children of any pre-deceased son or daughter), not upon the other heirs referred to in sub-sectioon (1) in the order specified therein, but upon the heirs of the father; and b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband. .. .As per Section 16 of the Hindu Succession Act 1956, an order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestate's property among those heirs shall take place, according to the following rules, namely;- Rule 1.- Among the heirs specified in sub-section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously. Rule 2:- If any son or daughter of the intestate