Determination of inheritance rights among legal heirs concerning partition of ancestral property and validity of Wills.

JUDGEMENT :

R.N.Manjula, J.

The appellants are the defendants 4 and 5 against whom the plaintiffs have filed a suit for partition and separate possession of their half share in 'A' and 'B' suit schedule properties. The trial Court has partly decreed the suit and granted the relief of half share to the plaintiffs only in respect of 91 cents. The defendants 4 and 5 had preferred first appeal challenging the judgement and decree of the trial Court and the same was also dismissed by confirming the judgement of the trial Court. Now the defendants 4 and 5 have preferred this second appeal by challenging the judgement of the courts below.

2.The short facts pleaded in the plaint by the plaintiffs are as follows:

The suit properties were belonged to one Kalippanadi who is the common ancestor of the plaintiffs and the defendants. The wife of Kalippanadi died before 35 years and thereafter, Kalippanadi also died. They have two daughters by name Valliammal and Vellachiammal and one son by name Palaniappan. Valliammal died in the year 1997. The plaintiffs 1 to 3 are the daughters of the deceased Valliammal. The 4^th plaintiff is the son of Valliammal. Vellachiammal died in the year 1987. The 1st defendant is Vellachiammal's son. The defendants 2 and 3 are the wife and minor son of deceased Subramani. Palaniappan has been living with one Mottachiammal and she is not his wife. The 5the defendant is not the son born through the 4^th defendant and Palanaiappan, however he has been impleaded as a party to avoid future technical issues if any. The suit A schedule properties are landed properties and B schedule properties are house sites.

2.1.The suit A schedule properties originally belonged to one Nagapanadi by virtue of a registered sale deed dated 23.07.1932. The said property has been mortgaged in favour of one Selamba pannadi on 9.12.1935 and later it was once again mortgaged in favour of Anganaicken on 14.8.1937. On 05.6.1939-Nagapanadi sold an extent of 1 acre 30 cents of the suit properties to Palaniammal. He sold the remaining 20 cents in favour of Mariammal, Valliammal and Vellachiammal through a registered sale deed dated 24.7.1965. The mortgage loan in respect of 'A' suit schedule property has been discharged by Palaniammal's husband. Through a settlement deed dated 01.11.1943-Palaniammal has settled 65 cents in favour of 4^th defendant. As the 4^th defendant did not have any child and her husband Palaniappanadi also died on 5.8.2003, the title of the said property came back to the settlor Palaniammal. The plaintiffs along with defendants 1 to 3 are in enjoyment of suit 'A' schedule property as the legal heirs of the original owner.

2.2. On 11.10.1944 Palaniammal had cancelled the settlement deed dated 01.11.1943, Valliammal and Vellachiammal had purchased the remaining 26 cents in suit 'A' schedule property. On 18.7.1968 they executed a settlement deed in favour of Pallaniappan whereunder he was given the right to enjoy the property till his lifetime without any power of encumbrance in it and giving the vested remainder to his legal heirs. Palaniapan did not have children, hence the absolute estate has become inoperative and the title reverts back to the settlors and thus it is inherited by their legal heirs.

2.3. Palaniappan executed a registered Will dated 21.08.1989. Under this Will, he bequeathed the properties to the first defendant and his sister, Sundarammal, who had previously passed away unmarried and without any children. However, the Will is not legally valid, as Palaniappan had no authority to dispose of the plaint schedule properties. By virtue of a partition deed dated 22.01.1936, the suit 'B' schedule property was bequeathed to Nagapanadi and Kaliapanadi. After the demise of Nagapanadi on 16.06.1941, the defendants settled the suit 'B' schedule property infavour of his wife Palaniammal. The suit properties are in joint enjoyment of the defendants 1 to 3 and the plaintiff. On 05.08.2003, after the demise of Palaniapandi, defendan