KRISHNAN Vs. VASU

JUDGEMENT

(1.) First defendant in a suit for partition (O. S.338 of 1966) is the appellant. Second plaintiff has filed Cross Objections contending that the lower appellate Court ought to have held that his right over item No. 2 of the plaint schedule is not affected by the creation of lease by defendants 1 and 2.

(2.) Suit properties originally belonged to Bella and Bellunga. They bequeathed the properties in favour of their nieces Kanchi and Bellachi as per Ext. A-1 Will dated 9-10-1914. Bella died in 1920. Bellunga died later. Defendants 3 and 4 are the children of Kanchi. First plaintiff is the son of Bellachi. On 2-7-1920, Bellunga, Bellachi and Karichi jointly executed a registered usufructuary mortgage deed for Rs.800/- in respect of the said properties in favour of Appe as per Ext. A-2. Ext. A-2 takes in the 2 items of properties. Appe is the nephew of Bellunga and the younger brother of Kanchi and Bellachi. After the death of Bella his portion of the property devolved on Karichi and Bellachi. Appe executed an illidarwar deed (Ext. A-4) in favour of Appukunhi in respect of item No. 1 property on 16-10-1948. Appe got back the property on lease on the same day as per Ext. X-2. A registered gift deed of that property was executed by Appe in favour of his nephews (1st plaintiff and defendants 3 and 4) as per Ext. A-5 dated 16-10-1948. At the time of Ext. A-5 the 1st plaintiff was not in the locality. His whereabouts were not known. On 15-10-1948 Appe and Defendants 3 and 4 executed a registered sale deed in favour of defendants 1 and 2 in respect of item No. 2 as per Ext. A-3. Second plaintiff claims to have obtained half right of the first plaintiff over items 1 and 2 as per Ext. A-6. First plaintiff's claim over item No. 2 is on the basis of Ext. A-1.

(3.) Item No. 1 has an extent of 1 acre 80 cents and item No. 2 has an extent of 75 cents. With regard to item No. 2 tenancy is claimed by the 11th defendant under defendants 1 and 2 and that was accepted by the Land Tribunal and the Appellate Authority. The C. R. P. is against that finding.