IMPORTANT POINT
Property of a female Hindu dying intestate shall devolve, firstly, upon sons and daughters (including children of any pre-deceased son or daughter) and husband.

JUDGMENT :

PRASHANT KUMAR MISHRA, J.

Delay condoned in filing Special Leave Petition(C) Diary No(s). 7823 of 2018.

2. Leave granted in Special Leave Petition (C) No(s). __ @ Special Leave Petition(C) Diary No(s). 7823 of 2018.

3. This appeal has been preferred by the defendant no. 2 (Sachidhanandam) assailing the legality and validity of the judgment and decree passed by the High Court, allowing the regular second appeal in part, preferred by the plaintiff (E. Vanaja-respondent no. 1 herein).

4. Plaintiff’s suit for partition was allowed by the trial Court allotting her 1/8th share in the suit properties. On appeal by the defendant no. 2, the First Appellate Court allowed the appeal in part holding that the plaintiff/respondent no. 1 is entitled to 1/16th share in suit ‘B’ and ‘C1’ schedule properties. At the same time, the First Appellate Court granted liberty to the plaintiff to work out her remedy for mesne profits with regard to ‘C1’ schedule property and items 25 to 30 in ‘B’ schedule properties by filing a separate proceeding under Order 20 Rule 12 of CPC. As against this, the High Court in second appeal has held that after the death of the plaintiff’s husband, namely, Elangovan, and her mother-in-law, the plaintiff is entitled to 1/7th share out of 1/8th and 1/16th of her mother-in-law’s share in the ‘B’, ‘C’ and ‘C1’ schedule properties.

5. The plaintiff-respondent no. 1 is the widow and the sole heir of Elango, the third son of Nallathambi Chettiar whereas the defendants are the widow, sons and daughters and grand sons of the said Nallathambi Chettiar. It would be appropriate to refer the genealogical tree as mentioned in Schedule ‘A’ of the plaint to appreciate the relations between the parties.

6. The plaintiff preferred a suit for partition claiming 1/8th share, or such shares as the Court thinks fit, in the suit properties described in schedules ‘B’, ‘C’ and ‘C1’ as also for mesne profits. It was the case of the plaintiff that ‘B’ schedule properties are self-acquired properties of Nallathambi Chettiar, whereas the ‘C’ schedule properties have been purchased by defendant nos. 1 to 4 from the income earned from the ‘B’ schedule properties and ‘C1’ schedule properties are also joint family properties, therefore, the plaintiff is entitled to 1/8th share in all the properties.

7. The defendants admitted the relationship between the parties. According to them, the plaintiff can claim a share in respect of her deceased husband’s share in the joint family properties. It was stated that on the date of the death of the plaintiff’s husband, his 1/8th share in the estate of Nallathambi Chettiar devolved equally on his wife, the plaintiff herein and his mother (Elangovan’s mother) who died during the pendency of the suit. Thus, the plaintiff is entitled only to 1/16th share in ‘B’ schedule properties. In respect of ‘C’ schedule properties, it was the case of the defendants that except for items 15 and 16 standing in the name of the plaintiff’s deceased husband, other properties do not belong to the joint family. No part of the income from the joint family properties has been utilized for the purchase of properties in the individual names of defendant nos. 2 to 4 and 8.

8. Both parties have led evidence, oral and documentary before the trial Court basing upon which the trial Court held that the defendants have not established the veracity of the Will dated 01.02.2000 executed by the deceased-1st defendant (Nagammal), therefore, they are not entitled to claim the rights in respect of the properties mentioned in the Will. The trial Court categorically held that the properties mentioned in schedule ‘B’ and ‘C’ are jointly family properties and the plaintiff is entitled to her share therein to the extent of 1/8th. The First Appellate Court held that the plaintiff/respondent is entitled to 1/16th share in suit ‘B’ and ‘C1’ schedule properties. In respect of ‘C’ schedule properties, it was held by the First Appellate Court that the same are