(Judgment of this Court was delivered M.M.SUNDRESH, J.) The first plaintiff has filed the suit for partition and separate possession claiming 1/4th share along with the second plaintiff, who is none other than her son. The first plaintiff, who is the appellant herein, being aggrieved over the judgment and decree rendered by the trial court in dismissing the suit has preferred this Appeal Suit.
2.One Pattan Chettiar had one son and 3 daughters. Chidambaram Chettiar is the son of Pattan Chettiar. The appellant being the first plaintiff and defendants 1 to 3 are the sons of Chidambaram Chettiar. The defendants 4 to 6 are the daughters and the 7th defendant is the wife of Chidambaram Chettiar. 8th defendant is the subsequent purchaser of the 11th item of the schedule of properties. Defendant No.9 is the agreement holder of the 13th item standing in the name of defendant No.2. Defendants 10 to 11 are the legal heirs of defendant No.1 impleaded after his death. Pending the suit the defendant No.7 being the wife of Chidambaram Chettiar died and the legal heirs are taken note of accordingly.
3.The suit has been laid by the plaintiffs on the ground that all the properties are ancestral properties. Ex.B.17 is the Will executed by the father of the appellant in favour of defendants 2 and 3 on 08.06.1995, which was duly registered. Ex.B.18 is another Will written by the very same person in favour of the plaintiffs and others. As per Ex.B.17 certain properties were given in favour of some of the defendants and under Ex.B.18 along with plaintiffs and others have been given certain properties. Ex.B.1 is the settlement deed dated 11.09.2001, in favour of the second plaintiff. Ex.B.2 is another settlement deed executed on the very same date by the deceased Chidambaram Chettiar in favour of the appellant. Ex.B.1 is with respect of 3rd, 4th, 5th, 6th and 8th items of the schedule to the plaint. Ex.B.4 is a deed of disclaimer dated 27.11.2011, by which the appellant has agreed not to lay any claim in properties other than the properties mentioned in Ex.B.18. Ex.B.11 is the letter of the deceased father of the appellant, which also throw light about the nature of the properties and the arrangements made between the parties. Exs.B.14 to B.16 are the documents to show that Chidambaram Chettiar was running rice mill in his own name. Chidambaram Chettiar died on 09.02.2003, which fact is not in dispute.
4.Before the trial Court, the issues are to the effect that as to whether the plaintiffs are entitled to partition or not, whether the suit properties are self-acquired properties or joint family properties, whether the deed of disclaimer is true, whether the parties are entitled to their respective properties as per Exs.B.17 and B.18 and whether the agreement entered into between the 2nd defendant and the 9th defendant through the power holder is true or not.
5.The trial Court after holding that the suit properties are self acquired properties and therefore placing reliance upon Ex.B.17 and 18 was pleased to dismiss the suit against the appellant and her son. Though the suit was filed by the appellant and his son, this appeal is preferred by her alone.
6.The learned counsel appearing for the appellant would submit that the suit properties are ancestral properties. The Wills said to have been executed by Chidambaram Chettiar under Exs.B.17 and 18 are not proved as per law. The settlement deeds under Ex.B.1 and B.2 will not take away the right of the appellant. The trial Court has committed an error in not granting a lessor relief, even assuming that Ex.B.17 and B.18 are true. There is a doubt created over Ex.B.11, which is a letter executed by the father of the appellant in as much as the months mentioned therein is not correct.
7.The learned Senior Counsel appearing for respondents 1, 2, 4, 8 and 9 would submit that the evidence available would clearly show that the properties are self-acquired properties of Chidambaram Chettiar. The appellant being party to Ex.B.11 cannot be allowed to take a different stand. The appellant was given two properties along with his son, namely, second plaintiff under Ex.B.2 and B.1 . As per Ex.B.5 one of the property was sold and the proceeds were given to the appellant under Ex.B.3. Therefore, there is no error in the order passed by the trial Court.
8.On a specific query raised by us, the learned Senior Counsel appearing for the contesting respondents/defendants would fairly submit that the appellant is entitled to the properties allotted to her under Ex.B.18. Ex.B.11 and B.4 are to be seen in the context the properties covered under Ex.B.18. Therefore to that extent the appellant is entitled to the properties in Ex.B.18.
9.Considering the above, the following issues came up for consideration in the appeal suit:
(i) Whether the suit schedule properties are self-acquired properties of Chidambaram Chettiar or ancestral properties.
(ii) Is the appellant is entitled for a decree based upon Ex.B.18.
10.Ex.B.17 was executed on 08.06.1995 and Ex.B.18 was executed on 11.06.2001. These two documents are registered Wills executed by Chidambaram Chettiar. To prove the will the attestors have been examined. In clear terms they have stated about the execution. D.W.4 is the attestor of both Exs.B.17 and B.4. D.W.5 is the attestor of Ex.B.18. There is nothing to infer that the evidence of D.Ws.4 and 5 is not true. It is also to be seen that after execution of Ex.B.18, Ex.B.1 and B.2 have been executed. Thereafter, a sale was effected on the next day under Ex.B.5. If one sees Exs.B.1 and B.2 along with Ex.B.5, then the intention of the testator will be clearly seen. Under Ex.B.3 the appellant has received the amount being sale proceeds under Ex.B.5. Accordingly, we hold that Exs.B.17 and 18 are proved.
11.Under Exs.B.14 to 16 it is clear that the father of the appellant was doing independent business. Exs.B.1 and B.2 clearly states that the properties are self-acquired properties of Chidambaram Chettiar. Curiously the appellant received the settlement and thereafter enjoying the properties along with his son. She has also not seriously challenged Ex.B.4. The trial Court has rightly found the signature in Ex.B.11 is that of Chidambaram Chettiar. The properties standing in the name of other defendants are self- acquired properties as all of them were self-employed. The appellant has not produced materials to show that the properties are ancestral properties and joint family properties. Therefore, there is no difficulty in holding that the suit properties are self-acquired properties of the father of the appellant and the defendants as the case may.
12.The only other question to be considered is as to whether the appellant is entitled for the decree as per Ex.B.18. Ex.B.18 deals with seven properties. Item No.2 mentioned therein is a subject matter of Ex.B.1, which is a settlement in favour of the appellant's son being the second plaintiff. Item No.6 under Ex.B.18, which is the subject matter of Ex.B.2 was settled in favour of the appellant. The appellant has not challenged the settlement executed under Ex.B.1. Item Nos.4 and 5 mentioned in Ex.B.18 were sold. The evidence is to the effect that they have been sold for the purpose of conducting the marriage of the appellant. As fairly submitted by the learned Senior Counsel appearing for the contesting defendants, there is no objection from the other legal heirs of the deceased Chidambaram Chettiar to give the properties allotted under Ex.B.18 to the appellant excluding item Nos.4 and 5, which have been sold. Of course, the properties governed under Exs.B.1 and B.2 have already been given in favour of the appellant and her son, namely, the second plaintiff. Therefore, there is no question of giving them again to the appellant. Ex.B.18 speaks about the allotment in favour of other legal heirs also. However, we are not concerned with that. Insofar as the appellant is concerned, she is entitled for the properties given to her under Ex.B.18. The entitlement comes also on the basis of Exs.B.4 and 11. Accordingly, the issue framed based upon Ex.B.18 is answered to the effect that the properties allotted in favour of the appellant, excluding those covered under Exs.B.1, 2 and 5 are to be given in favour of the appellant. After all, the power of the Civil Court is plenary. Therefore, the relief can be moulted, especially when the relief is not disputed by others.
13.Insofar as item No.14 of the schedule of properties is concerned, it consists of only jewels. The appellant has not given any particulars nor there is evidence to show that they are joint family properties. Coming to item No.13, the trial Court has rightly found that the defendant No.2 is having independent means. The properties having been purchased by him in his name, the onus lies on the appellant to prove that it is a joint family property. As there was no material in support of it, the trial Court rightly held that item No.13 belongs to defendant No.2. However, we feel that the issue with regard to agreement having been entered between defendants 2 and 9 ought not to have gone into and answered by the trial Court. It is to be noted that a suit was also filed by defendant No.9 against the defendant No.2 for specific performance. It is the case of the defendant No.2 that the agreement was entered into by way of a security for loan. Hence, once its proved that the property mentioned in item No.13 belongs to defendant No.2, the incidental issue is unnecessary.
14.Therefore, we are of the considered view that, as discussed above, the appellant is entitled for the properties allotted to her under Ex.B.18. However, the settlement entered into under Exs.B.1 and B.2 and the sale under Ex.B.5 are true and genuine. Therefore, the appellant is not entitled to the properties mentioned therein, especially when there is separate challenge has been made.
15.Accordingly, while setting aside the judgment and decree rendered by the trial Court the following decree is passed:
(i) The appellant is entitled to the items of properties allotted to her under Ex.B.18, excluding those covered under Exs.B.1 and 5.
(ii) The appellant is entitled to property mentioned under Ex.B.2 as per the deed of settlement.
(iii) In all other respects the decree and judgment of the trial Court stand confirmed.
16.Accordingly, the appeal suit is allowed in part and consequently, the suit is decreed in part. No costs. Consequently, connected Miscellaneous Petition is closed.
To The Additional District Judge, Fast Track Court No.1, Tirunelveli.
Copy to The Section Officer, V.R. Section, Madurai Bench of Madras High Court, Madurai.
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