KRISHNAKUMAR Vs. ANANDAN

JUDGEMENT

(1.) The first defendant in a suit for partition, is the appellant.

(2.) Plaintiff and defendants 1 to 3 are sons of one deceased Kumaranandan. Kumara-nandan's father was Krishnanandan. In 1951, Krishnanandan and Kumaranandan together with the children then born to Kumaranandan, entered into Ext. A 1 styling it a partition deed. As per that partition deed, it is seen that the properties which belonged to Krishnanandan, having obtained in an earlier partition between himself and his brother, and the properties acquired by Krishnanandan as well as Kumaranandan, were put together and division or settlement effected. Properties were divided into six schedules, and A schedule to E schedule were set apart to the different parties to the deed. The F schedule was not allotted to any particular individual, but with respect to Items 1 and 2 in F schedule, a Trust was created and Item No. 3 was left in common for the benefit of the entire family.

(3.) The plaintiff who was a minor at the time of Ext. A1, has filed this suit for partition of the F schedule properties in Ext. A1 among the children of Kumaranandan. According to the plaintiff, himself, the first defendant, their father and grandfather originally belonged to an undivided Hindu family, which got divided in 1951 as per Ext. A 1, that the properties covered by Ext. A1 belonged to the family, and that F schedule properties to the partition deed were left in common, undivided. It is his further case that even though with respect to Item Nos. 1 and 2 of F schedule a trust was purported to have been created as per that document, such a trust could not be created by the executant, and those items also remain in common. In paragraph (4) of the plaint, it is averred that, "even though the word 'trust' is used in the document, no such trust can be created by the executants of that partition deed." The reason given is that the creation of such a trust is against the provisions of S. 7(a) and (b) of the Indian Trusts Act, 1882. It is further alleged that no trust with respect to Items Nos. 1 and 2 has ever come into being and now after the death of Krishnanandan and Kumaranandan, the first defendant as the eldest member, is managing the properties and they are liable to be divided among the plaintiff and defendants equally.