M.R. Shah - (1.) Leave granted.
(2.) Feeling aggrieved and dissatisfied with the impugned Judgment and Order passed by the High Court of Judicature at Madras dated 05.01.2016 passed in AS No.785 of 1992 dismissing the same and affirming the Judgment and Decree dated 05.08.1992 passed by the learned Subordinate Judge, Arni in O.S. No.124 of 1990 decreeing the suit for partition by original plaintiff, the original defendant nos. 1 to 3 have preferred the present appeal.
(3.) The facts leading to the present appeal in nutshell are as under : That, one Rajeswari and Others-original plaintiffs instituted a suit bearing O.S. No.124 of 1990 for partition of the suit properties and separate possession. It was the case on behalf of the plaintiffs that the first defendant is the wife of one Narayanasamy Mudaliar. That, the said Narayanasamy Mudaliar and original defendant no.1 had one son and three daughters namely Elumalai (son), Ranganayaki (daughter), Nagabushanam (daughter) and Navaneetham (daughter). That, the son Elumalai and daughter Ranganayaki had died. The first plaintiff is the wife of Elumalai, the second plaintiff and plaintiff nos. 3 to 8 are the husband and children of the deceased Ranganayaki. That, Elumalai and the first plaintiff did not have issue. According to the original plaintiffs, Narayanasamy Mudaliar sold the ancestral properties and purchased the suit property in the name of first defendant - Mangathai Ammal (wife of Narayanasamy Mudaliar). Therefore, it was the case on behalf of the plaintiffs that Narayanasamy Mudaliar and his son Elumalai are entitled to half share of the ancestral properties. That, it was the case on behalf of the plaintiffs that the same Narayanasamy Mudaliar had died twenty years back to the filing of the suit. His share in the properties was inherited by Elumalai, defendant nos. 1 and 2 viz Nagabushanam Ammal and Ranganayaki Ammal. That, the Ranganayaki died about six years before filing of suit, therefore, her legal representatives viz original plaintiff nos.2 to 8 inherited her share in the properties. That, the Nagabushanam executed the Release Deed dated 24.04.1990 in favour of the first defendant. According to the plaintiffs, the first plaintiff is entitled to 5/8th share, plaintiff nos. 2 to 8 are entitled to 1/8th share and the defendants are entitled to 1/4th share in the suit properties. According to the plaintiffs, since the defendant tried to claim the suit properties, the plaintiffs filed the present suit for partition. 3.1 The suit was resisted by the defendants. As per the case of the first defendant, except item nos. 1 and 3 of the suit properties, the other properties are self-acquired properties of the first defendant. According to the first defendant, the first item of the suit property was purchased out of the money provided by her in her name. According to the first defendant, the suit properties are not the ancestral properties of Narayanasamy Mudaliar. It was denied that the suit properties were purchased by selling the ancestral properties. It was the case on behalf of the defendant no.1 that except properties in item nos. 1 and 3 of Schedule II, the properties were purchased by the defendant no.1 out of the stridhana she received from her parents' house and by selling the gold jewellery. It was also the case on behalf of defendant no.1 that after purchasing the property from Thangavel Gounder and others; she constructed a house and is in possession and enjoyment of the said property. According to the defendant no.1, the deceased Narayanasamy Mudaliar was entitled to 47 cents in Survey No. 218/1 and 8 cents in Survey No. 218/3 and the deceased Ranganayaki Ammal is entitled to 1/5th share in the suit properties. It was also the case on behalf of the first defendant that, similarly, the first plaintiff's husband is also entitled to 1/5th share, in which, first defendant and first plaintiff are entitled to half share in the suit properties. According to the first defendant, the first defendant's daughter Nagabhushanam executed a Release Deed in respect of her own share. It was also the case on behalf of the first defendant that she never acted as a manager of the joint family. According to her, she executed a Will dated 11.02.1987 in favour of plaintiff nos. 1 and 2 and Nagabhushanam Ammal. However, since the beneficiaries of the Will did not take care of the first defendant, she revoked the Will on 11.06.1990. 3.2 Defendant nos. 2 and 3 supported defendant no.1. According to defendant nos. 2 and 3, defendant no.1 mortgaged the property with defendant no. 3 for a valuable consideration, which was also known to the plaintiffs. Defendant nos. 2 and 3 also adopted the written statement filed by defendant no.1. 3.3 That the learned Trial Court framed the following issues: "1) Whether the suit schedule properties are ancestral properties of husband of the 1st plaintiff namely Elumalai and the deceased Narayansamy? 2) Whether it is true that the 1st defendant had managed the suit schedule properties being the Manager of the Family? 3) Whether it is true that the Suit Schedule properties are jointly enjoyed by all the family members as Joint Family Property? 4) Whether the plaintiffs are entitled to claim partition in view of the Release Deed dated 24.04.90 executed by Nagabooshanam Ammal? 5) Whether it is true that the 1st defendant had executed a Will on 11.2.87 to and in favour of plaintiffs in respect of suit schedule property and revoked the said Will on 11.6.90? 6) Whether it is true that the plaintiffs are in joint possession of the suit schedule properties? 7) Whether the plaintiffs are entitled to get 3/4th share over the suit schedule properties? 8) Whether the present suit is not valued properly? 9) To what relief the plaintiffs are entitled? 3.4 Before the Trial Court, on the side of the plaintiffs, four witnesses were examined and three documents Exh. A1 to A3 were marked. On the side of the defendants, two witnesses were examined and 19 documents Exh. B1 to B19 were marked. That, the learned Trial Court, after taking into consideration the oral and documentary evidences of both the sides, passed a preliminary decree finding that the plaintiffs are entitled to 3/4th share in the suit properties. Feeling aggrieved and dissatisfied with the Judgment and Decree passed by the Trial Court, the original defendant nos. 1 to 3 preferred appeal before the High Court. That, by impugned Judgment and Order, the High Court has dismissed the said appeal and has confirmed the Judgment and Decree passed by the Trial Court. Feeling aggrieved and dissatisfied with the impugned Judgment and Order passed by the High Court dismissing the appeal and confirming the Judgment and Decree passed by the learned Trial Court, original defendant nos.1 to 3 have preferred the present appeal.;