JUDGEMENT

The plaintiff in the suit O.S.No.30 of 2006 filed for partition on the file of the Subordinate Court, Nilgiris, Udhagamandalam is the appellant before this Court.

2. The brief facts which have culminated in filing of the above appeal are herein below set out and the parties are referred to in the same litigative status as before the trial Court.

3. Before proceeding to discuss the facts of the case, it is necessary to just set out the genealogy for morefully appreciating the relationship amongst the parties.

Lingappa =

Maallamma(1st defendant)

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l l l l l l Savithri Nagaraj Lakshmi Prema Shantha Padma (plaintiff) (2nd defendant) (3rd defendant) (4th defendant) (5th defendant) (6th defendant)

Plaintiff's case:

4. It is the case of the plaintiff that the suit properties belonged to one Lingappa. The plaintiff is the daughter of Lingappa. The first defendant is the wife and defendants 2 to 6 are the children of the said Lingappa and the plaintiff's siblings. The suit properties were purchased by the said Lingappa out of the sale proceeds from the sale of the ancestral properties situate in Mandya, Karnataka. The said Lingappa died on 06.11.2004. On the death of the said Lingappa, the properties had devolved equally upon all of them. The plaintiff would submit that despite her request for partition, the second defendant was not coming forward to partition the property. Therefore, the plaintiff had issued a legal notice dated 22.02.2006 requesting for a partition of the properties. The second defendant had issued a reply on 01.03.2006, in which, he had contended that the suit properties have been bequeathed upon him by his father Late, Lingappa under a Will dated 31.07.2003. The plaintiff would contend that she had sent a suitable re-joinder on 09.03.2006 and followed it up with the suit.

Written statement:

5. The defendants 1, 3 to 6 had filed a written statement more or less adopting the case of the plaintiff. The second defendant had filed a written statement inter-alia contending that the suit for a partition has to fail, since his father had executed a Will dated 31.07.2005 bequeathing the entire properties upon him. He would further submit that all the sisters had been married providing them with the requisite jewels and articles. That apart, the father had also made fixed deposits in the names of their daughters and wife. He would submit that the plaintiff had got married in the year 1977 followed by the marriage of the other defendants, namely, 3 to 6 which took place in the years 1982, l986, 1998 and on 30.08.1990 respectively. He would further submit that the Will was prepared by one Mr.T.P.N.Nambiar, a well respected senior Advocate in Ooty and also attested by respectable members of the Society, who were known to his father. He would further contend that on the 11th day after the death of his father, the said Will taken out and read over to the plaintiff as well as the other defendants and therefore, she cannot at this stage feign ignorance about this document. Therefore, he would submit that the plaintiff and the other defendants are not entitled to a partition, since his father had bequeathed the suit properties upon the second defendant and had also provided well for his daughters, who are the plaintiff and defendants 3 to 6 herein. Therefore, he would pray that the suit for partition has to be dismissed.

Trial Court:

6. The learned Subordinate Judge had framed the following issues:

(i) Whether the plaintiff is having 1/7 share in the suit schedule property?

(ii). Whether the suit properties were bequeathed in the name of 2nd defendant as per Will dated

31.7.2003?

(iii) To what relief the plaintiff is entitled for?

On 05.10.2007, the following additional issues were framed:

1.Whether the 6th defendant is entitled to an undivided

1/3 rd share in the suit property?

2.To what reliefs?

On 30.06.2014, the following additional issue was framed:

(i) Whether the suit property is ancestral property or self acquired property of late J.