The 6th defendant in O.S.No.67 of 1989 on the file of the Sub Court, Thanjavur, is the appellant herein.
2.The plaintiff filed a suit for partition claiming 7/36th share in the suit properties. The plaintiff is the son of Chinniah @ Arokkiasamy Odayar, the deceased first defendant and A.Arokiamary, the appellant herein, who is the 6th defendant in the lower Court was the wife of Chinniah @ Arokkiasamy. The said Arokkiasamy Odayar had 5 sons, the plaintiff and the defendants 2 to 5 and the 3rd defendant Lourdusamy, died pending trial and his legal-heirs are defendant Nos.7 to 9. The first defendant, Chinniah @ Arokkiasamy also died and the 6th defendant was recorded as his legal-heir.
3.The case of the plaintiff is that his father got 2 acres of 'punja' lands and 100 'Kulis of Manaikat' lands from his mother and he sold 2 acres in the year 1979. Thereafter, the father of the plaintiff got lease of 'cashew tope' and out of their joint exertion and from the joint income, 20 acres of lands were purchased and they were the joint properties of the plaintiff and the first defendant. The plaintiff further stated that for the education of the 2nd defendant, 9 acres were sold and for establishing a medical shop at Chennai for the 2nd defendant, another 4 acres were sold and out of the sale consideration, Rs.10,000/- was spent for the plaintiff's marriage. Further, for the marriage of the 2nd defendant, 4.55 acres of lands were sold and at the instance of the plaintiff, a tractor was purchased on loan and after selling 4.55 acres of lands the dues of tractor was paid and in the panchayat held in the month of April 1987, the tractor was transferred in the name of the 1st and 6th defendant and at that time, it was assured that the plaintiff would be given his due share and as the defendants refused to give the plaintiff's share, he filed the suit for partition.
4.As the 1st defendant died on 18.08.1990, the plaint was amended and the plaintiff claimed 7/36th share in the suit properties.
5.The defendant Nos.2 to 5, 7 to 9 filed a written statement denying the allegations made in the plaint and contended that the suit properties were absolute properties of the 1st defendant and they have also spent various expenses as mentioned in the plaint and the plaintiff suppressed the income from the tractor, which belonged to the 1st defendant. Hence, the plaintiff is not entitled to any share. The 6th defendant, the mother, filed a separate written statement stating that under a Will dated 31.05.1990, the 1st defendant bequeathed all his properties in her favour and the Will had come into force on 18.08.1980, after the death of the 1st defendant and therefore, she became the absolute owner of the property and also claimed that the suit is bad for partial partition and the plaintiff, defendant Nos.2 to 5 have no right in the suit properties.
6.On the side of the plaintiff, 67 documents were marked and he examined three witnesses including himself as P.W.1. On the side of the defendants, 13 documents were marked and the 6th defendant examined herself as D.W.1 and the 2nd defendant examined himself as D.W.2
7.On the basis of the above pleadings and evidence, the following issues framed by the lower Court:
1.Whether the suit properties were purchased by the joint exertion of the plaintiff and the first defendant?
2.Whether the suit properties were the absolute properties of the first defendant?
3.Whether the first defendant executed a Will dated 31.05.1990 in favour of the 6th defendant?
4.Whether the 6th defendant is having exclusive right over the suit properties?
5.Whether the plaintiff is entitled to any share in the suit properties and if so, whether the share claimed by the plaintiff is correct?
6.To what relief the plaintiff is entitled to?
and an additional issue was framed and it is as follows:
1. Whether the suit is bad for mis-joinder of necessary party?
8.The lower Court tried the Issue Nos.1 and 2 and after elaborately discussing various documents and evidence held that the suit properties were the absolute properties of the 1st defendant. While answering the Issue Nos.3 and 4, the lower Court held that the 6th defendant failed to produce the Will dated 31.05.1990 alleged to have been executed by the 1st defendant and therefore, the Will has not been properly proved and hence, the 6th defendant will not get any exclusive right over the suit properties as the Will has not been produced and proved. The lower Court also held that the suit is not bad for mis- joinder of parties and finally, the lower Court held that the plaintiff is entitled to 2/15th share in the suit properties and accordingly, passed a preliminary decree declaring that the plaintiff is entitled to 2/15th share in the suit properties. Aggrieved over the same, the 6th defendant filed the above appeal.
9.As stated supra, during trial the 1st defendant, the father, died leaving behind his wife, the 6th defendant, sons, viz., the plaintiff and the defendant Nos.2 to 5. Therefore, the lower Court has calculated the share of the plaintiff holding that the entire properties belonged to the 1st defendant and the plaintiff had no right over the same., during his life time.
10.The points for consideration in this appeal are:
1.Whether the suit properties were purchased jointly by the plaintiff and the first defendant from and out of the income from the 'cashew tope'?
2.Whether the Will dated 31.05.1990 is legally valid?
3.Whether the 6th defendant gets any right in the appeal?
4.What is the share, the plaintiff is entitled to?
11.Point No.2: Though the 6th defendant, the appellant herein, claimed that her husband executed a Will dated 31.05.1990 bequeathing all the properties in her favour and after the death of the 1st defendant, she became entitled to the properties under that Will, the alleged Will was not produced before the lower Court and it was not validly proved by the 6th defendant. It is well settled that any person claiming right under a Will, has to produce the original Will and prove the due execution of the Will by examining at least one attesting witness. In this case, admittedly the Will was not produced and no witness was examined and therefore, as rightly held by the lower Court, this point is answered against the appellant holding that the appellant/6th defendant will not get any right under the alleged Will as the same was not produced and proved in accordance with law.
12.Point No.1: It is alleged by the plaintiff that in the year 1970, he and his father obtained a lease of 'cashew tope' and he and his father jointly put their labour and from and out of the said earnings the suit properties were purchased. It is stated in the plaint that at the time of filing the plaint in the year 1989, the age of the plaintiff was shown as 31 years. In the year 1970, he must be 12 years old and therefore, it cannot be believed that at that age, the plaintiff contributed his labour with his father and from and out of the joint exertion the suit properties were purchased. Except the oral evidence of the plaintiff, no other evidence has been adduced by the plaintiff to prove that from and out of the joint exertion of himself and the first defendant, the suit properties were purchased. Though, P.W.2 was examined by the plaintiff to prove that the suit properties were purchased by the joint exertion of plaintiff and the first defendant, his evidence did not inspire confidence and no details have been stated about the joint exertion of the plaintiff along with his father. Further, P.W.2 is aged about 55 years and he is a Carpenter and he is not able to say the details of properties purchased by the plaintiff. Similarly P.W.3, was examined for the purpose of proving that Rs.40,000/- was paid to the 2nd defendant for his business purpose and even according to P.W.3, he did not say that the plaintiff and the 1st defendant worked together and purchased the properties. Therefore, there is no evidence except the evidence of P.W.1 to the effect that he contributed his physical labour along with his father and the properties were purchased out of their joint exertion. Further, he was not able to produce any sale deed in respect of Item Nos.1 and 2 of the suit properties. The lower Court discussed all these aspects in the judgment and correctly come to the conclusion that the properties are the absolute properties of the 1st defendant and the plaintiff had no right over the suit properties and the properties were not purchased out of the joint exertion of the plaintiff and the 1st defendant.
13.Points No.3 and 4: The lower Court having regard to the religion, to which the parties belonged to viz., Christianity, rightly held that the 6th defendant become entitled to 1/3rd share as widow and the remaining 2/3th share is to be divided among the sons. While holding so, the lower Court held that the plaintiff is entitled to 2/15th share in the suit properties. In my opinion, the shares allotted by the lower Court in favour of the plaintiff is not correct. Admittedly, the 3rd item of the suit property was purchased in the joint names of the 1st and 6th defendant viz., Exs.A1 and B2. Therefore, in the 3rd item of the suit property, the 6th defendant has half share and 1st defendant had half share and 1st defendant's half share devolved on the 6th defendant and her children and the 6th defendant got 1/3rd of half share from her husband's share in the 3rd item of the suit property and she has half share in the 3rd item of the suit property in her own right. Therefore, in the 3rd item of the suit property the 6th defendant gets 2/3rd share and the plaintiff gets 1/15th share. In the 1st and 2nd item of the suit properties, the plaintiff gets 2/15th share as held by the lower Court.
14.In the result, the appeal is partly allowed holding that in respect of plaint 1st and 2nd items, the preliminary decree passed by the lower Court is confirmed and in respect of the 3rd item of the suit property, the plaintiff is entitled to 1/15th share only and the 6th defendant is entitled to 2/3rd share. In other aspects, the order of the lower Court is confirmed. Consequently, connected C.M.P. is closed. No costs.
er To, The Subordinate Judge, Thanjavur.