IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 08.11.2006

CORAM:

THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN

A.S.NO.352 OF 1993

1. Lakshmi(D1)

2. Minor Murugesan(D2)

3. Minor Varadarajan(D3)

4. Minor Nallammal(D4)

.. Appellants

(Minor 2 to 4 rep by their

guardian as mother; 1st appellant)

-vs-

1. Susila(Plaintiff)

2. Thanam(D5)

3. Sundaram(D6)

.. Respondents

This appeal was filed under Section 96 of C.P.C. against the

decree and Judgment dated 27.4.1992 and made in O.S.No.85 of 1989 on the

file of Subordinate Judge Ariyalur.

For appellants : : Mr.R.Rajarajan for Mr. S. Rajan

For respondents: : Mr.S.Parthasarathy,

Senior Counsel

for Mr.M.S.Krishnan-R1

No appearance-RR2 and 3.

JUDGMENT

This appeal has been preferred against the decree and Judgment in

O.S.No.85 of 1989 on the file of the Sub Court, Ariyalur.

2. The averments in the plaint in brief are as follows:

The plaintiff,5th defendant, and 6^th defendant are the sisters of the

deceased Manicka Udayar, who was the husband of the 1^st defendant and the

father of defendants 2 to 4. Admittedly, the father of the plaintiff, 5^th

defendant, 6^th defendant and the deceased Manicka Udayar, was one

Nallathambi Udayar. According to plaintiff, the plaint schedule

properties are the ancestral properties of Nallathambi Udayar,the father,

who died intestate in the year 1979 leavingbehind him,his wife,the first

defendant's husband Manicka Udayar, and his sisters, the plaintiff, 5^th

defendant and 6^th defendant as his legal heirs. The plaintiff's mother

also died in the year 1986 Nallathambi Udayar had no necessity to borrow

any debts. There was no debt to the Hindu Joint Family on the death of

Nallathambi Udayar. The plaintiff being an undivided member of the Joint

Family of the deceased Nallathambi Udayar, is entitled to 1/4th share in

all the suit properties on the death of her father along with defendants 1

to 6. Since the other defendants have not joined with the plaintiff, as

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co-owner, the plaintiff has come forward with the suit. Every year,

plaintiff's brother Manicka Udayar used to give grains and cash for the

maintenance of the plaintiff. The plaintiff's brother Manicka Udayar also

died intestate on 20.5.1989 leaving behind him, his wife and children,

who are defendants 1 and 2 to 4 respectively. After the death of Manicka

Udayar, the plaintiff demanded defendants 1 to 4 for a partition. When the

plaintiff approached defendants 1 to 4 for partition, due to evil advice

of some mischief mongers, defendants 1 to 4 denied the share of the

plaintiff in the suit properties by saying that the deceased Manicka

Udayar had executed certain documents. Defendants 1 to 4 would contend

that on 17.5.1989, Manicka Udayar had executed a registered Will,

bequeathing all the suit schedule properties in favour of defendants 1 to

4. The plaintiff obtained a registration copy of the same on 21.6.1989.

The alleged Will was not duly executed by the deceased Manicka Udayar. The

alleged attestors and scribe of the said document are the henchmen of the

1st defendant. It ought to be a forged and concocted document. Even if,

there is any Will, it will not bind the interest of the plaintiff and her

sisters in respect of the suit schedule properties. Neither the plaintiff

nor her sisters were parties to the said document. Only to deny, the

plaintiff's due share in the plaint schedule properties, Defendants 1 to

4 have falsely created a right through the said Will. Defendants 1 to 4

refused to divide the suit property on 22.6.1989. The plaintiff does not

want to remain joint with other sharers any more. Hence, the plaintiff has

filed the suit for partition of her 1/4th share in the suit properties.

3.Defendants 1 to 4 have filed a joint written statement with the

following averments:

The description of property given in the plaint Item 1 to