KUMARASWAMI MUDALIAR Vs. RAJAMANIKKAM UDAYAR

JUDGEMENT

(1.) DEFENDANTS 1 and 2 are the appellants. The first appellant died and his legal representatives have been impleaded as additional appellants 3 to 9. The facts relevant for the disposal of the appeal are stated here. Respondents 24 and 25 are brothers, being the sons of Karuppudayan. Respondents 1 and 2 who instituted the suit in the court below are the sons of the 24th respondent. It is admitted by both sides that these parties are governed by Hindu Mitakshara Law. The suit properties were demised on verumpattom by the Cochin Sirkar in favour of a tarwad. The rent due to the Cochin Sirkar under the demise was Rs. 1224-8-2 per annum. Karuppudayan got an assignment of the verumpattom right from the members of the tarwad and after his death it devolved on respondents 24 and 25, who executed an assignment Ext. B-5 dated 4-6-1937 in favour of Karuppaswami chettiar. The rights under Ext. B-5 were assigned by Karuppaswami Chettiar under ext. B-1 dated 10-7-1940 to the first appellant and his brother Perumal Mudallar. Respondents 3, 4 and 5 are the sons of Perumal Mudaliar. The right under Ext. B-1 was partitioned between the first appellant on the one hand and respondents 3 to 5 on the other under Ext. B-2 dated 4-3-1951 and the appellants are in possession of one half of the plaint items while the Other half is in the possession of respondents 3 to 5. The 26th respondent is the mortgagee of respondents 3 to 5 in respect of their interests in the plaint items. Respondents 24 and 25 effected a partition of their joint family properties under Ext. B-3 dated 18-5-1954. The properties which fell to the share of the 24th respondent were divided under Ext. A-4 dated 11-4-1957 to which the 24th respondent and respondents 1 and 2 were parties.

(2.) THE suit was instituted by respondents 1 and 2 for partition and recovery of their 2/6th share in the plaint items on the ground that Ext. B-5 is not supported by consideration and family necessity and could not bind the interests of respondents 1 and 2 in the plaint items and for other reliefs. It was alleged in the plaint that the first respondent was four days old on the date of Ext. B-5 having been born on 1. 6. 1937 and the second respondent was born subsequent to Ext. B 5. The second respondent was a minor on the date of the suit represented by the first respondent.

(3.) THE suit was contested mainly by the appellants, respondents 3 to 5 and 26. Their main contentions were that Ext. B-5 is supported by consideration and family necessity and binding on the interests of respondents 1 and 2 in the plaint items, that the first respondent also was an afterborn son and therefore respondents 1 and 2 were not competent to impeach Ext, B-5, that the suit is barred by limitation and adverse possession and that respondents 1 and 2 are debarred from filing the suit on account of Exts. B-3 and A-4.