The validity of a Will and the partition of ancestral properties under the Hindu Succession Act 1956.

Common Judgment:

1. 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 fathers 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. 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 husbands 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 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. 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 Munsifs Court, Mannargudi for recovery of possession of her ½ share under the said partition deed dated 24. 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. 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 3. 1983 in respect of ½ share of the property which she got under the partition deed dated 24. 1970 in favour of the plaintiff and the said Will was registered on 13. 1983