V B ARUN KUMAR Vs. JAYASINGH

JUDGEMENT

(1.) Special leave granted.

(2.) Heard counsel for the parties.

(3.) This appeal arises out of O. A. No. 407 of 1978 filed by the appellants against the respondents for the partition of properties covered by a lease deed (Ex, A-2 dated 31/05/1944, Sankaran, the common ancestor of the parties had two sons Madhavan and Balgangadharan by his first wife Madliavi. The appellants are the sons of Balgangadharan while the respondents are the sons of Madhavan. Krishnan the Karanavan of the common tarwad had orally leased the suit properties to Madhavan and subsequently Madhavan had executed the lease deed Ex. A-2 in respect of the said lands. In the suit the case of the appellants was that the properties covered by thelease deed were given on lease to Madhavan as he was the eldest male member of the branch of the family consisting of himself and his brother Balgangadharan and their children for the maintenance of the members of the said branch and that the appellants and respondents were jointly entitled to the properties. The said suit was contested by the respondents who claimed that the properties were given on lease to Madhavan alone and that after the death of Madhavan the respondents are entitled to the properties in their own rights and the appellants could not claim any share, in the same. They also submitted that the suit was barred by res judicata in view of the preliminary decree in the earlier suit for partition (O. S. No. 21 of 1946 as well as the decision of the High court in A. S. No. 622 of 1971 arising out of O. S. No. 34 of 1969.