LAW FOR ALL

MADURAI BENCH OF MADRAS HIGH COURT - all sisters, seeking partition and separate possession of 1/5th undivided share to each one of the Plaintiffs and for a direction against the Defendants 1 and 2 to pay future mesne profits from the date of the plaint till the date of realisation and for costs. =As pointed by the Supreme court in S.Rathinam vs. Mariappan {AIR 2007 SC 2134}, a Will of a man is the aggregate of his testamentary intentions manifested in writing and is not a transfer.; Sangaiah Servai died only on 25.11.2010. On that date, he had an undivided 1/6th share in the suit properties. By the definition of 'will' he could bequeath only his property, which naturally means that he could only bequeath 1/6th undivided share. Consequently, the Appellant, who already has an existing 1/6th share, would be entitled to an additional 1/6th share in view of the bequeath made by his father Sangaiah Servai through Ex.B4. In such circumstances, the Appellant herein would be entitled to an undivided 2/6th share and the Respondents, who are the Plaintiffs would be entitled to only 1/6th share each in the suit properties. Similarly, the 4th Defendant, who was the 1st Defendant in the suit, would also be entitled to an undivided 1/6th share. This naturally means that the judgement and decree appealed against this does not warrant any interference since the Trial Court had also granted an undivided 1/6th share to each one of the Plaintiffs.