JAYACHANDRAN Vs. VIDYAVATHI

JUDGEMENT

(1.) DEFENDANTS 1 to 4 are the appellants and they filed this Second Appeal aggrieved over the decree and judgment dated 30.01.2004 passed by the learned Principal District Judge, Chengalpattu, in A.S.No.21 of 2003, whereby the decree and judgment dated 04.09.2002 passed by the learned Subordinate Judge, Ponneri, in O.S.No.99 of 1998 were set aside. For the sake of convenience, the parties herein are referred to as they were arrayed in the trial court.

(2.) THE brief facts giving rise to this appeal are as follows: THE 3rd respondent herein is the plaintiff, who filed the pauper suit in O.S.No.99 of 1998 before the Sub Court, Ponneri, against the defendants, who are the appellants, respondents 1 and 2 herein and her mother, for a partition and separate possession of her 1/8th share in the suit property. THE plaintiff and defendants 1 to 6 are the children of late Kothandapani and Unnamalai Ammal, the 7th defendant and all constituted members of a Hindu Joint family. Kothandapani Gramani died on 15.05.1980 and during his lifetime, he had purchased an extent of 0.36 cents in dry S.No.54 in Kottivakkam village for a sum of Rs.300/- on 24.03.1945 from one Gurusamy Nadar from and out of his self earned amount. Ever since the date of purchase, Kothandapani Gramani was in possession and enjoyment of the suit property and he had also constructed a well built tiled house as well as shops, which have been let out to various parties on rent. Since the suit property was the self acquired property of late Kothandapani Gramani, on his death, the plaintiff as well as the defendants were each entitled to an equal share under section 8 of the Hindu Succession Act. But, the 1st and 2nd defendants, the brothers of the plaintiff, were in possession of the suit property in entirety detrimental to the interest of the plaintiff and the other defendants, who are the daughters and the widow (Unnamalai Ammal) of the deceased Kothandapani Gramani and they were also enjoying the income from the rented shops. THE plaintiff was occupying about only 1-1/2 cents in the suit property and residing there in a thatched hut till 1989. Similarly, the 6th defendant was also residing in the suit property separately. THEre was a common bath room in the suit property and defendants 1 and 2 obstructed them from using the bathroom. THE plaintiff and the 6th defendant were driven out of the suit property. Hence, the plaintiff filed the suit for partition and separate possession of her 1/8th share. Pending suit, the 7th defendant (the mother of the plaintiff and the other defendants) died, and as such, the plaintiff amended the prayer in the plaint by modifying her share as 1/7th share.

(3.) DEFENDANTS 5 and 6 filed a written statement stating that the suit property was the self-acquired property of their father Kothandapani Gramani and they were entitled to 1/7th share each in the entire suit property.