- (1.)The Appeal Suit is directed against the judgment and decree dated 06.02.2016 passed in O.S.No.347 of 2007, on the file of the learned Additional District Judge, Chengalpattu.
(2.)The suit was instituted originally by the appellant and the first respondent jointly and after dismissal of the suit by the Trial Court, the second plaintiff namely Mr.E.Nagendiran, filed the first appeal and the first plaintiff was arrayed as first respondent in the appeal suit. The suit was instituted for partition by meets and bounds by separate possession of 2/7th share in the schedule mentioned property.
(3.)The facts in nutshell, as narrated in the plaint are as under: The plaintiffs and the defendants are the children born out of wedlock between the couple Sri Ezhumalai Naicker and Smt.Chokkammal. The defendants 1,2 and 5 who are the daughters of the said couple have been given in marriage by their parents providing them sufficiently at the time of their respective marriage and that all the said defendants 1,2 and 5 are living separately with their respective husband since their marriage. The father of the parties to the suit namely Sri.Ezhumalai Naicker died intestate leaving behind his certain properties which had been disposed off after his life time by the parties above named. The mother of the parties above named Tmt.Chokkammal acquired the properties namely Dry lands comprised in Survey No.427/2A2C1 (Part) of Medavakkam Village of the extent of 24 cents in and by the settlement deed dated 29.11.1978 and said properties were being cultivated through third party. The said Ezhumalai Naicker and his wife Chokkammal were residing with the first plaintiff at No.2/80, Velacherry Main Road, Medavakkam, Chennai - 601 302 till their life time and that the said Kanniappan was taking care of them. The said Chokkammal was an illiterate and a sick person and first plaintiff and his family members were taking care of her and providing her of all her requirements. The said Chokkammal was also suffering from severe Asthma and that she was under active medication for over 10 years. In the premises the said Chokkammal was not in good health and sound state of mind. She had no mind to depend on the first plaintiff for everything. The said Chokkammal died intestate on 06.03.2000 at the residence of the first plaintiff and he performed all the last rites on her demise. Even after he relief time as usual the aforesaid lands belonged to Chokkammal and more particularly described in Schedule continued to be cultivated and the profit there from were described among the plaintiffs 1 and 2 and defendants 3 and 4 and that the rates and taxes in respect of the suit property are being paid by the first plaintiff. By the end of 2006, the defendants 1, 2 and 5 also demanded equal share in the estate left by Chokkammal. In the premises in order to maintain amity among brother and sisters it was decided that the schedule mentioned properties could be equally divided among the parties herein being the plaintiffs and defendants. But the defendants 1 and 3 were not agreeable to equal distribution holding out the daughters should be given more share which could not be agreed upon among the parties to the suit. The plaintiffs issued lawyer's notice dated 03.03.2007 to all the defendants and on receipt of the said legal notice the defendants 1 and 3 sent a reply dated 12.03.2007 making false allegations and disclosing a will purposed to have been executed and registered by the said Chokkammal even on 15.02.1993. The alleged will was never executed by Chokkammal and it was never disclosed or published until 12.03.2007. As stated above the said Chokkammal was not in sound and disposing state of mind and she was suffering from acute Asthma for over 10 years and that she was wholly under the care of the first plaintiff. The said Chokkammal is an illiterate and she cannot read and write. The alleged will is dated 15.02.1993 is a fabricated document. The defendants 2, 4 and 5 duly received the legal notice dated 03.03.2007 they did not sent any reply so far. The will dated 15.02.1993 set-up and claimed to have been executed by the Chokkammal is fabricated; and valid and not genuine document. In above circumstances, the plaintiffs are entitled for 1/7th share each along with the defendants 1 to 5 and partition of such share by metes and bounds. Since the defendants have not complied with the plaintiffs demand for partition and separate possession, the plaintiffs are constrained to file this suit.