GOVINDAMMAL Vs. R PERUMAL CHETTIAR

JUDGEMENT

(1.) These appeals are directed against the judgment and order dated 30.12.1998 passed by learned Single Judge of the Madras High Court in Second Appeal No.2253 of 1986 and Second Appeal Nos.145 and 146 of 1988.

(2.) Brief facts giving rise to the present appeals are that the plaintiff filed a suit being O.S.No.409 of 1981 for partition and separate possession and also claimed for rendition of accounts. The plaintiff is the second wife of Raju Naidu. Raju Naidu married Rajakanthammal as his first wife and she died in or about 1946 leaving behind the defendant Nos. 1 and 2 as their sons and one daughter by name Saraswathi. After the death of his wife, Raju Naidu married second time to the plaintiff as the second wife. There was no issue from the second wife. Raju Naidu died intestate in 1954 and on his death the plaintiff and defendant Nos. 1 and 2 were the legal heirs to inherit the properties of Raju Naidu. B schedule properties are the separate and self acquired properties of Raju Naidu. It is alleged that the plaintiff and defendant Nos.1 and 2 lived amicably for sometime. Afterwards, the plaintiff started living separately and defendant Nos.1 and 2 were giving her share of income from the properties. She demanded partition of the properties. It was promised by both the sons of Raju Naidu and step sons of the plaintiff but without any result. One year before filing of the present suit, defendant Nos.1 and 2 started acting against the interest of the plaintiff and they stopped giving the income to the plaintiff. Then they alienated item Nos. 3 to 8 of the scheduled properties to defendant No.3 and further to defendant No.4 the entire B and C schedule properties under the pretext of the decree in O.S.No.101 of 1967 and O.S.No.247 of 1970 against defendant Nos.1 and 2. The plaintiff was not a party to these two suits and therefore that decree was not binding on her. It is alleged that a notice was sent for the first time for partition of the properties sometime in 1979 which was replied by the defendants. It is alleged that a reply was sent by the defendant No.1 to the plaintiff wherein it was stated that the allegations are false and item No.2 has been purchased recently by the defendant No.1 out of the sale proceeds got by him by selling item Nos.3 to 8 in favour of defendant No.3. Item No.2 also belonged to the joint family. It was also alleged that at the time of marriage, Raju Naidu had already executed a registered settlement deed dated 17.4.1947 and in that 38 cents were given to the plaintiff and the plaintiff remained in peaceful possession of the C schedule properties. Thereafter, when the suit was filed the defendant No.1 filed a written statement and in that it was alleged that the plaintiff does not have any share in the property and C schedule property was already settled in her favour. A panchayat was also convened and arrangement was made that C scheduled property would remain with her and she would not claim any share in the property. It is also alleged that defendant No.1 maintained the defendant No.2 and their sister and gave her in marriage. After the death of her husband, she and her minor son are still maintained. It is also alleged that sale deed in favour of defendant No.3 was executed by defendant No.1 to meet the debts to the extent of Rs.40,000 by way of promissory notes and simple mortgages. As such, the suit filed by the plaintiff was barred by law. Defendant No. 2 also contested the suit and even challenged the marriage of the plaintiff with Raju Naidu. It is alleged that after the death of Raju Naidu only two sons became the sole owners by way of survivorship. It is alleged that he has sold undivided half of the properties for valid consideration. Defendant No.3 was a purchaser and he contested the suit and submitted that the suit was not maintainable without the prayer for cancellation of the two sale deeds and he also took the plea of limitation. Defendant No.4 being another purchaser of the property, took the plea that the plaintiff only lived with the deceased Raju Naidu for few months and she left on her own and went to her parents house. It was also alleged that his son Mahendran has purchased Door No.8-A and 8-B in Kutchery Road for a valid consideration of Rs.26,000/- from defendant No.2. It is also alleged that he has also filed a suit being OS No.416 of 1981 for allotment of share.

(3.) So far as A schedule properties are concerned, only partial relief has been given to plaintiff with regard to A schedule properties. We are primarily concerned with B scheduled properties. The trial Court initially framed 10 issues and 7 additional issues were framed in OS 409 of 1981 and 11 issues were framed with regard to OS 416 of 1981. Both the suits were tried together as there was common evidence in both the suits. Large number of documents were filed by both the sides. The trial Court after hearing the parties, dismissed OS No.409 of 1981 and passed a preliminary decree for partition and separate possession of plaintiffs half share in the suit A schedule property in OS No.416 of 1981. Aggrieved against this order defendant No.1 preferred an appeal being AS No.55 of 1984 and the plaintiff also preferred an appeal being AS No.244 of 1984 on the file of the District Judge. The appeal of the plaintiff with regard to OS No.409 of 1981 was allowed and the judgment and decree was set aside and a preliminary decree was passed for partition and separate possession of plaintiffs 1/3rd share in the properties mentioned in B schedule and further directed defendant Nos. 1 to 3 to render accounts in respect of items 3 to 8 of plaint B schedule properties and directed defendant Nos. 1 and 2 to render accounts in respect of the income from items 1 and 2 of the plaint B schedule properties from the date of the suit and further directed Defendant No.4 to render accounts in respect of the income from the portion of item 1 of B schedule property from the date of purchase. Defendant No.1s appeal being AS No.55 of 1984 was also allowed and the judgment and decree in OS 416 of 1981 was modified to the effect that the plaintiff was entitled to the share of Thambaiyan the 2nd defendant in the plaint A schedule property and that the suit for partition was dismissed in view of the suit for general partition in OS No.409 of 1981was decreed. Aggrieved against these two orders, three second appeals were preferred before the High Court. In Second Appeal No.2253 of 1986 the following substantial questions of law was framed.