JANABAI AMMAL Vs. T A S PALANI MUDALIAR

JUDGEMENT

(1.) The above two appeals arise out of the judgment rendered by the Subordinate Judge of Cuddalore in 0. S. No. 242 of 1969, the former appeal having been preferred by the plaintiff and the latter by the first defendant in the suit.

(2.) The plaintiff filed the suit in forma pauperis seeking partition and separate possession of her 115 share or 116 shaze; or 1/10 share or 1/12 share in the plaint schedule properties and recovery of past and future mesne profits in respbet of her sham and. for costs. Her case as pleaded in the plaint is as follows: One Swaminatha Mudaliar, who is the common ancestor in this case, had two sons viz., defendants 1 and 5 in the Buit, and four daughters. of whom the plaintiff is one. Swaminatha Mudaliar owned extensive properties. The fifth defendant Balasubramania Mudaliar got some properties from his father and went out of the family in 1929 itself after executing a release deed dated 12th Aug., 1929 in favour of his father and his brother, the first defendant. The properties so got by the fifth defendant have been described in the A schedule to the said release deed. 1-hereafter, Swaminatha Mudaliar continued to live with the plaintiff and defendants I to 4 and acquired other properties and also the properties given to the fifth defendant. Swaminatha Mudahar died intestate on 23rd June, 1957 possessed of all the properties consisting of (1) movables, (2) immoveables and (3) stock-in-trade, which are more particularly described in Schedules I to 3 to the plaint, Under the Hindu Law, as governed by the Hindu Succession Act 1936, the plaintiff and defendants I to 4 are each entitled to 1/5 share in all the properties. If it is found by the Court that the fifth defendant is also entitled to a share, then each of them would be entitled to a 1/6th share. According to the plaintiff, all the, properties set out in the plaint were the separate -properties of Swaminatha Mudaliar. The plaintiff sent a notice under Ex. A-2 dated 2nd June, 1969 to the first defendant, demanding division of the properties and allotment of 115 share to the plaintiff. Though the first defendant received Ex A-2 on 3rd June, 1969 under the acknowledgment Exhibit A-3, he has not chosen. to give any reply so far. If it is the case of the first defendant that all the properties are joint family properties, then, on the death & Swaminatha Mudaliar, the first' defendant would be entitled to a half share in all the properties while the other half which belonged to Swaminatha Mudaliar should be taken by the plaintiff and defendants I to 4 or defendants I to 5. Swarninatha Mudaliar stayed at Tindivanam till his death, where he was carrying, on his business in iron materials. The plaintiff has been staying 'with her husband and children at Cuddalore, while defendants 2 to 4 were staying in different places with their husbands and children. Having regard to the relationship between the parties and also the confidence reposed on the first defendant, the first defendant was allowed to be in possession and management of all the properties, though Ws possession had been and had continued to be for and on behalf of the parties, viz., the plaintiff and defendants I to 4. It was only recently discovered that the first defendants attitude towards his sisters is neither fair nor honest. Hence, it has become necessary for the plaintiff to get her share in all the properties divided and allotted. Hence the suit. She has also claimed past and future mesne profits in respect of her share.

(3.) The second defendant filed a written statement, almost adopting the plea of the plaintiff and offering to file a separate application for permission to claim relief as a pauper in this suit. but she does not seem to have filed any such application.