KITTU NAIDU Vs. KRISHNAN CHETTY RAMAN CHETTY

JUDGEMENT

(1.) This appeal is by the 2nd plaintiff, legal representative of the 1st plaintiff, against the judgment and decree of the court below, dismissing his suit for partition herein.

(2.) The 1st plaintiff is the elder brother of the 1st defendant. Themselves and their father belonged to the Chetty Community and constituted a Joint Hindu family governed by the Mitakshara. The plaint A schedule immovable properties in Cochin and the B schedule movables appertained to that joint family On 18-10-1113, the 1st plaintiff executed Ex. I release deed in favour of the father and younger brother, of all his one-third share in the A schedule properties, for a sum of Rs. 200. A like release, it is said, was executed with reference to the family properties in Malabar. The father died in Karkadagam 1120. The first defendant thereafter assumed to be the full owner of the A schedule properties and created various encumbrances over them which finally culminated in Ex. IX usufructuary mortgage dated 18-1-1123 in favour of one Subramonia Vadhyar for a sum of Rs. 3,000 and a lease back Ext X. Ext. II is the assignment, in favour of the 2nd defendant, of Exts. IX and X rights. The 2nd defendant took from the 1st defendant two karars also on 5-10-1125 and 5-10-1126 and basing himself on these and Ex. X, he filed suit and obtained decree against the 1st defendant, in O. S. 713 of 1951 and O.S. 714 of 1951 of Wadakkancherry Munsiffs Court. On foot of some other encumbrances in his favour, the 3rd defendant obtained decree in O. S. 771 of 1950 against the 1st defendant. According to the plaintiff, Ex. I was not intended to be nor really, acted upon and had been executed merely to stave off trouble from the family of an unmarried girl, Ammini of the Naidu community with whom he had developed intimacy. The plaintiff had indeed taken up management of the family affairs on the death of the father and on such footing, and along with his mother and the 1st defendant, executed Ext. A sale deed on 10-8-1121 of the family properties in Malabar to pay off the family debts. The plaint averred that the 2nd defendant was the brother of the father of Ammini above referred to and the 3rd defendant was the 2nd defendants adherent and they had collusively prevailed upon the 1st defendant to execute the encumbrances. The suit was therefore laid on 21-1-1952 for partition and recovery of the plaintiffs one-half share in A and B schedule properties subject to the payment only of the family debt represented by the C schedule. Subsequent to the institution of the suit, the 1st plaintiff died and his universal legatee under Ex. C was impleaded as the 2nd plaintiff.

(3.) The 1st defendant supported the plaintiff. His only complaint was that the 1st plaintiff had been misappropriating the family income and was, on that basis, liable to account. The main contest was raised by the defendants 2 and 3. They contended that Ext. I was genuine and valid and had been acted upon by the parties at all relevant times. The 1st plaintiff had accordingly no locus standi to question the encumbrances created by the 1st defendant on basis of his sole ownership of the properties. They asserted that the debts contracted by the first defendant in their favour were real arid unimpeachable both by the 1st defendant and 1st plaintiff. They suggested that the suit was taken with a view only to forestall the execution proceedings on foot of the decrees obtained by them.