CHIDAMBARA IYER Vs. RAMA PATTAR

JUDGEMENT

(1.) This appeal is from the decree dismissing a suit for partition. The plaintiff is the son of the first defendant. The latter had another son, Subramonia Iyer, who is alleged to have left home 23 years before the institution of the suit and has not been heard of since then. The parties are governed by Hindu Mithakshara Law. Alleging that the properties described in the plaint schedules belonged to the joint family of the plaintiff and the first defendant, the plaintiff sued for partition and recovery of one-half share in the same. Items 15 to 18 in schedule A of the plaint were sold by the first defendant to the second defendant, and according to the plaintiff, the sale was not binding on him. The supplemental third defendant was impleaded later as he purchased items 15 to 18 from the second defendant. The plaintiff also claimed damages on account of waste alleged to have been committed by the first defendant.

(2.) All the defendants contested the suit. The first defendant contended that the properties in schedule A were acquired by him with his own efforts and that the same belonged to him absolutely. As regards the moveables, his case was that he did not get any in family partition and that those he had, were taken possession of by the plaintiff when he forcibly drove him out of his house. The sale of items 15 to 18 was stated to be a valid transaction. The allegation of waste was denied. Defendants 2 & 3 filed separate written statements contending that the first defendant was competent to sell items 15 to 18, that the sale was valid and that the plaintiff was not entitled to any relief in respect of the same.

(3.) The court below held that the properties did not belong to the joint family but were the acquisitions of the first defendant. It Was also held that the plaintiffs elder brother could be presumed to be dead. The suit was accordingly dismissed, and the plaintiff has preferred this appeal. The first defendant died after the suit was decided by the Trial Court and respondents 1 to 3 were impleaded as his legal representatives. On the application of the first respondent, a daughter of the first defendant who claimed all the properties under a will executed by the deceased first defendant, the other respondents were removed from the array of parties. The plaintiff relinquished his claim in respect of items 15 to 18 and defendants 2 &3 were not made parties to the appeal.