IMPORTANT POINT
The court established that daughters have inheritance rights under the Hindu Succession Act, and the validity of a will must be proven without suspicious circumstances.

JUDGMENT :

S. Sounthar, J.

[PRAYER : Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree, dated 29.10.2001 made in A.S.No.77 of 2001 on the file of the Principal District Judge at Thanjavur reversing the judgment and decree, dated 28.01.1998 made in O.S.No.489 of 1996 on the file of the District Munsif Court at Thanjavur.]

The third defendant in the suit is the appellant herein.

2. The first respondent herein filed a suit for declaration of title and injunction in respect of suit 'B' and 'D' Schedule properties with alternative prayer for partition of 1/3rd share in respect of all the suit properties, namely, suit 'A' to 'D' Schedules. The suit was dismissed by the Trial Court and on appeal filed by the first respondent / plaintiff, the First Appellate Court allowed the appeal and decreed the suit and granted declaration and injunction as prayed for. Aggrieved by the same, the third defendant has come before this Court.

3. According to the first respondent / plaintiff, the suit properties originally belonged to one Natesa Merkondar, husband of first defendant and father of plaintiff and second defendant. He died in the year 1957 leaving the plaintiff and defendants 1 and 2 as heirs to succeed to his estate. After marriage of the plaintiff and second defendant, the suit properties and other properties which were not subject of the suit were divided in an oral partition in the presence of Villagers. The suit 'A' Schedule properties were allotted to the share of second defendant. The suit 'B' Schedule properties were allotted to the share of plaintiff. The suit 'C' Schedule property, dwelling family house was kept as a common property. It was also agreed that the plaintiff and second defendant shall pay five bags of paddy each to the first defendant annually and Rs.100/-per year towards her maintenance. The said arrangement was accepted and acted upon by the parties. Some of the properties allotted to the plaintiff and defendant were sold to third parties by plaintiff, first defendant and second defendant jointly as per the wish of the purchasers. Recently, there was mis-understanding between the first defendant and her daughters, namely, plaintiff and second defendant. She made attempts to act against the interest of the plaintiff and second defendant. Therefore, a legal notice was issued on 14.05.1985. It appears first defendant sold some of the suit properties to third defendant through a registered sale deed, dated 29.05.1985 and the same was not binding on the plaintiff and second defendant as first defendant had no right or title to sell the entire property to third defendant. The first defendant in collusion with third defendant made attempts to trespass in to the suit property and hence, plaintiff was constrained to file a suit for above said relief.

4. The second defendant, sister of plaintiff filed a written statement supporting the plaint averments.

5. The first defendant remained ex parte and the third defendant, purchaser of the portion of the suit properties from first defendant filed a written statement and denied the oral partition pleaded by the plaintiff. He also claimed that Natesa Merkondar died on 28.03.1956 prior to coming into force of Hindu Succession Act. Therefore, it was the claim of the third defendant that first defendant, wife of Natesa Merkondar, got the properties as a limited owner and the same got enlarged into absolute estate after coming into force of the Act. It was also pleaded that first defendant executed a Will in favour of third defendant on 28.05.1992 bequeathing 2 cents of land in R.S.No.89B/60 and 8 cents of plot in R.S.No.89B/8E in favour of the third defendant. After death of first defendant, the third defendant has been enjoying the property purchased by him and also the properties he got under the Will as an absolute owner. Therefore, he sought for dismissal of the suit.

6. Before the Trial Court, the plaintiff was examined as P.W.1 and yet an