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2014 DIGILAW 2408 (MAD)

Kamatchi v. K. Onnappan

2014-08-06

V.M.VELUMANI

body2014
Judgment 1. This civil revision petition has been filed to set aside the fair and decretal order, dated 27.07.2006, made in I.A.No.402 of 2005 in O.S.No.411 of 1980, on the file of District Munsif Court, Nilakottai. 2. The petitioner is the first defendant, whereas the respondents 1 to 4 are the legal heirs of the original plaintiff-Unnamalai Ammal, the respondents 5 and 6 are the defendants 3 and 4 and the respondents 7 to 9 are the legal heirs of the deceased second defendant-N. Jayaraman, in the suit in O.S.No.411 of 1980. 3. The suit in O.S.No.411 of 1980 was filed by the deceased Unnamalai Ammal, the mother of the respondents 1 to 4 and mother-in-law of the petitioner, for partition of suit property against her daughter-in-law, the petitioner herein and other defendants, who are subsequent purchasers. According to the said Unnamalai Ammal, the suit property belonged to her son Pandi, the husband of the petitioner herein. On his death, she inherited half share in all the suit properties. After contest, a preliminary decree was passed on 25.01.1984. Against the said preliminary decree, the second defendant filed A.S.No.353 of 1984 on the file of District Court, Madurai and same was dismissed on 12.08.1985 with some modifications. As against the Judgment and Decree, the second defendant has filed the Second Appeal in S.A.No.136 of 1986 and the same was dismissed on 23.09.1998, confirming the judgment and decree of the trial Court. The respondents 1 to 4 filed I.A.No.402 of 2005 for passing a final decree by appointing an Advocate Commissioner to divide the suit properties by metes and bounds and allot half share to them. They also relied on the Will, dated 05.10.1979, executed by Unnamalai Ammal, bequeathing all her properties to them. 4. The petitioner filed counter affidavit opposing the said application. According to her, the respondents 1 and 3, who are the sons of Unnamalai Ammal, are only her legal representatives. The respondents 2 and 4 are not the legal heirs of Unnamalai Ammal. She contended that the Will, dated 05.10.1979, alleged to have been executed by Unnamalai Ammal, is not valid. There is a suspicion in respect of the said Will, as Unnamalai Ammal has executed the Will even before filing of the suit for partition. The respondents 2 and 4 are not the legal heirs of Unnamalai Ammal. She contended that the Will, dated 05.10.1979, alleged to have been executed by Unnamalai Ammal, is not valid. There is a suspicion in respect of the said Will, as Unnamalai Ammal has executed the Will even before filing of the suit for partition. Further, she contended that unless the respondents 1 to 4 proved the Will in a competent Court of law, they cannot claim any right under the said Will. She has also contended that even during the life time of her husband, the properties were partitioned. The respondents 1 and 3 and their mother were living separately and they were not living together along with her husband and herself. For this reason also, the petitioner stated that the respondents 1 and 3 are not entitled to any share of the property of her husband. 5. The learned Judge considering the materials on record and the arguments of the learned counsel for the parties, by order dated 27.07.2006, appointed an Advocate Commissioner, to divide one-half of the petition mentioned properties in each items of the properties with metes and bounds to the respondents 1 to 4. 6. Aggrieved against the said order, the present civil revision petition is filed. 7. Heard Mr. M. Thirunavukkarasu, learned counsel appearing for the petitioner and Mr. D. Senthil, learned counsel appearing for the respondents 1 to 4. Though notice was served on the respondents 6, 7 and 9 and their names are printed in the cause list, they have not chosen to appear either in person or through counsel. The petitioner has given up the fifth respondent. 8. The learned counsel for the petitioner argued that the respondents 2 and 4 are not the legal heirs of the deceased Unnamalai Ammal. The respondents 1 and 3 were living separately from their brother Pandi (husband of the petitioner) and all the properties were partitioned among the family members. Therefore, they are not entitled to any share in the properties of her husband Pandi. After the death of Unnamalai Ammal, she is entitled to a share in the properties belonging to her mother-in-law Unnamalai Ammal. Unless the respondents 1 to 4 proved the Will, dated 05.10.1979, they are not entitled to claim any share in the properties of Unnamalai Ammal. 9. After the death of Unnamalai Ammal, she is entitled to a share in the properties belonging to her mother-in-law Unnamalai Ammal. Unless the respondents 1 to 4 proved the Will, dated 05.10.1979, they are not entitled to claim any share in the properties of Unnamalai Ammal. 9. Per contra, the learned counsel for the respondents argued that the Will, dated 05.10.1979, was executed by Unnamalai Ammal voluntarily and out of her own free Will. There is no prohibition to execute the Will in respect of the properties, which may come into the hands of the person, who is executing the Will. There is no necessity to prove the Will in a competent Court, as this Court has recognised the respondents 1 to 4 are the legal representatives of the deceased Unnamalai Ammal in S.A.No.136 of 1986, based on the Will, dated 05.10.1979 and therefore, the respondents 1 to 4 were impleaded as legal representatives of the deceased Unnamalai Ammal in S.A.No.136 of 1986. 10. I have carefully perused the materials on record and considered the arguments of the learned counsel and the respondents. 11. It is an admitted fact that the respondents were impleaded as legal representatives of deceased Unnamalai Ammal in S.A.No.136 of 1986, by this Court. Therefore, it is not open to the petitioner to contend that the respondents 2 and 4 have no right in the property of Unnamalai Ammal. The respondents 1 to 4 were impleaded as legal representatives of deceased Unnamalai Ammal, based on the Will, dated 05.10.1979 and therefore, there is no necessity for the respondents 1 to 4 to prove the Will, dated 05.10.1979 to inherit the property of Unnamalai Ammal. Further, the partition among the family members will not disentitle them from inheriting the property as per the Hindu Succession Act. Therefore, there is no error in the order of the learned Judge warranting interference by this Court. 12. In the result, this civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.