PALANIVELAYUTHAM Vs. RAMASAMY

JUDGEMENT

(1.) DEFENDANTS 1 to 5 are the appellants in this appeal. The same arises out of the judgment and preliminary decree for partition rendered in O.S.No.341 of 1968 on the file of the Sub-court, Madurai.

(2.) THE facts are as under: During the minority of the plaintiffs, the suit was filed by P.W.I for partition and separate possession of the plaintiffs � l/6th share in the suit properties. THE suit filed was approved by the plaintiffs on their attaining majority. According to the plaint, the plaintiffs and the seventh defendant are the sons of Sivasankara through his second wife while defendants 1,5 and 6 are the sons through his first wife. THE eighth defendant is the second wife or Sivasankaran. Sivasankaran died on 27th January, 1956. THE suit properties are ancestral properties of the said Sivasankaran who inherited the same. THE suit properties remained as joint family properties of the plaintiffs and defendants 1,5 and 6 who continued as members of the joint family and as undivided even after the death of Sivasankaran. THE plaintiffs and defendants 7 and 8 are separately residing at Nilayur. THE suit properties were in the enjoyment of the plaintiffs and defendants 1 and 5 to 7. Defendants 1, 5 and 6 are not giving any income to the plaintiffs and defendants 7 and 8 as far as A and C Schedule properties are concerned. THEy began to alienate the joint family properties without any legal necessity or for any family benefit. Thus, they have alienated the B Schedule properties in favour of defendats 12 to 46. THE same is not binding nor are the other alienations. THE C Schedule properties originally belonged to one Palanivelayutham Pillai. He made an endowment in favour of the 11th defendant in respect of those properties, creating a charge and directing some kattalais by virtue of Ex.B-506, dated 18th February, 1907 and the right of the trusteeship and the C Schedule properties were inherited by Sivasankaran. He was doing service as directed in the said deed and enjoying the C Schedule properties absolutely. After the death of Sivasankaran, defendants 1 and 5 to 7 and the plaintiffs inherited the trusteeship and the C Schedule properties and they were doing service. However, later on, in collusion with defendants 1, 5 and 6, the defendants 9 and 10 were trying to change the name in the pattas and house tax receipts. THEy were also trying to interfere with the management of the trust and the C Schedule properties to which they have no right. THE movable properties described in D Schedule are liable to be divided. Though a sale deed in respect of some of the properties has been executed by Sivasankaran, that was never intended to be acted upon. Further, Sivasankaran has nominated a trustee who is -totally a different person. That nomination is invalid.

(3.) IN the written statement of defendants 1,5 and 6 it was alleged that it is not true to say that the properties are the ancestral properties of Sivasankaran. It is false to allege that the properties mentioned in A to B Schedule are the joint family properties of plaintiffs and defendants 1 to 7. Sivasankaran was entitled to several items in A Schedule. Item 9 belonged to the 1st defendant alone by virtue of a Will, dated 1st July, 1955. The alienations complained of had been done only with a view to discharge family debts. They were also for family necessity and benefit. IN respect of C Schedule properties, plaintiffs and defendants 1 and 5 to 8 have no manner of right. The document dated 18th February, 1907, namely, Ex.B-506, is perfectly valid. Palani-velayutham Pillai constituted his second wife Pichammal alias Avadai Ammal as trustee. She had no children and she brought up Subbammal, the first wife of Sivasankaran and her brother the 9th defendant. She executed a Will on 27th January, 1924 giving right jointly to Subbammal and her husband Sivasankaran Pillai. Since Subbammal predeceased her husband, Sivasankaran Pillai was in possession and nominated a trustee. Therefore, that nomination is perfectly valid. The heirs of Sivasankaran alone are entitled to succeed to the trust. This fact is borne out by the execution of a general power of attorney by the said Pichammal alias Avadai Ammal. The 9th defendant has managed to get documents executed in his favour, exercising coercion and undue influence. He is not a member of the family of Sivasankaran Pillai since he is an intruder.