Every circumstances cannot be treated as suspicious circumstance.

T.V. Masilamani, J.

The appellant in O.S.A.No.148 of 2000 is the 5th defendant in the suit in C.S.No.522 of 1992 and the respondents 1 to 5 are the plaintiff and the defendants 1, 2, 4 and 6 respectively.

The appellant in O.S.A.No.149 of 2000 is the plaintiff in T.O.S.No.31 of 1998 (5th defendant in C.S.No.522 of 1992) and the respondents 1 to 3 are the defendants 1 to 3 in T.O.S.No.31 of 1998 (defendants 1, 2 and plaintiff in C.S.No.522 of 1992) respectively.

2. Since the learned Single Judge tried both the suits jointly after recording evidence in C.S.No.522 of 1992 and treating the same as the evidence in the other suit also, the parties and witnesses referred to in C.S.No.522 of 1992 are referred to hereunder as they were referred to in the judgment rendered by the learned Single Judge for the sake of convenience. Thus, the common judgment is pronounced with reference to these appeals.

3. The plaintiff in C.S.No.522 of 1992 filed the suit for partition and separate possession of 1/7th share in item Nos.1 to 4 of 'A' schedule and 1/4th share in gold ornaments, silver articles and other articles mentioned in the plaint 'B', 'C' & 'D' schedule. Similarly, the 5th defendant in the said suit filed the suit in T.O.S.No.31 of 1998 on the basis of Ex.B-1, the last will and testament executed by his mother Kamalammal to grant letters of administration in his favour. The learned Single Judge, having anlysed the evidence, both oral and documentary adduced on either side and upon hearing both sides, granted a decree for partition in respect of 1/6th share in the properties left behind by the parents of the plaintiff and consequently, dismissed the suit filed by the 5th defendant on the basis of the will executed by his mother. Hence, the 5th defendant has preferred these appeals as against the common judgment and decrees passed in the said suits by the learned Single Judge.

4. The contentions of the first respondent in O.S.A.No.148 of 2000 (plaintiff in C.S.No.522 of 1992) in the plaint are briefly stated as follows:-

(a) The plaintiff and the defendants 1 to 3 are the daughters and the defendants 4 to 6 are the sons of Harikrishnan and Kamalammal. Harikrishnan died intestate in the year 1958 and Kamalammal also died intestate on 24.11.1986. Item No.1 of the plaint 'A' schedule property was purchased by Harikrishnan and it belonged to him. Item Nos.2 to 4 of 'A' schedule and the gold ornaments and silver articles described in 'B' and 'C' schedule belonged to Kamalammal. She purchased item Nos.2 to 4 of plaint 'A' schedule out of her own funds and therefore they are her separate properties.

(b) The plaintiff and the defendants constituted a joint Hindu family and as legal heirs of Harikrishnan and Kamalammal, they are each entitled to 1/7th share in all the schedule mentioned properties and so far as gold jewels and silver articles are concerned, the plaintiff is entitled to 1/4th share and the balance is due to the defendants 2 to 6. The plaintiff is in joint possession and enjoyment of the suit properties. After the death of the mother in 1986, misunderstanding arose between the plaintiff and the others and therefore, the common enjoyment has become impossible. The plaintiff is residing in a portion of the residential house in item No.2 of 'A' schedule and the 5th defendant is residing in the first floor of the said house. The plaintiff issued a notice calling upon the defendants to divide the suit properties and put her in possession of her share and even though the defendants received the same, they have neither sent a reply nor complied with the demand.

(c) The tenants are residing in the 'A' schedule item No.1 and the 4th and 5th defendants are collecting the rents, but they are not accounting for the income from the said property. In the cultivable land described in item No.3 of the plaint 'A' schedule, the 5th defendant is collecting the lease amount from the tenant for the possession of the property. The gold ornaments wei