KORA THOMAS Vs. JOSEPH JOSEPH

JUDGEMENT

(1.) An interesting question is raised in second appeal No. 1134 of 1967 and that concerns the effect of a decree for partition in an earlier suit wherein plaintiff claimed 1/3 share in the suit properties. The claim for 1/3 succeeded in the earlier suit and a preliminary decree was passed for the 1/3rd followed by a final decree which is under challenge in the connected appeal, S.A. No. 1135 of 1967 at the instance of the same party. In the present suit the same plaintiff claims partition of one-half of the same properties. It is necessary to state a few facts to understand how this situation has arisen.

(2.) Plaint items belonged to the father of plaintiff who was the grandfather of defendants 1 and 2. The father of the plaintiff died some time prior to 1952 and thereafter the mother was in possession. The mother died intestate in 1952. Plaintiff and father of defendants 1 and 2 were the sons of the said mother who died in.1952 and besides these sons she had a daughter who is not a party to this suit. It is claimed by the plaintiff in the plaint that he was entitled to one-half by inheritance to his mother and therefore he should get a decree for that one-half. This claim is resisted in the suit by defendants 1 and 2 who claim under their father by virtue of a document executed by the father during his lifetime in their favour. According to them, no doubt, their father as well as the plaintiff were entitled to one-half each, but in collusion with their father who had turned against them earlier, the plaintiff had filed an earlier suit O.S. No.72 of 1958 claiming 1/3 only in the suit properties. That attempt, according to defendants 1 and 2, was to reduce the share of their father also to 1/3 , so much so their settlement deed would also be operative for a lesser share. The case then was that besides the plaintiff and father of defendants 1 and 2 another sister of the plaintiff was also entitled to a 1/3 share, these respective shares having fallen to them by reason of an oral arrangement made by their mother before she died. In that suit defendants 1 and 2 in the present suit who were defendants 3 and 4 contested the claim of the plaintiff. They were not interested in enhancing the share claimed by the plaintiff therein. But to protect themselves as those claiming under the first defendant in that suit, their father, they set up the contention that plaintiff's sister had no right, that there was no oral arrangement as pleaded and by inheritance plaintiff in that suit as well as their father were entitled to one-half each. That was upheld. But, all the same, plaintiff was given a decree only regarding 1/3, as that alone was the claim made by the plaintiff in that suit. Possibly finding that the purpose for which that suit had been filed did not succeed, plaintiff has resorted to the next best by seeking to get one-half so that in that process at least to some extent the arrangement which has resulted in defendants being in possession of some property may be disturbed. That is why the claim is resisted by defendants 1 and 2.

(3.) Pursuant to the preliminary decree for partition in O.S. No.72 of 1958 declaring the share of the plaintiff therein who is the plaintiff in the present suit also, as 1/3, a final decree has been passed on a motion made in that behalf not by the plaintiff therein, but by defendants 3 and 4 in that suit who are the defendants here. That is the decree which is the subject - matter of the appeal, S.A. No. 1135 of 1967. will refer to the attack against that final decree separately.