KULASEKARAPERUMAL Vs. PATHAKUTTY THALEVANAR

JUDGEMENT

(1.) Pethakutty Thalavanar, Pooliappa Thalavanar and Subbiah Thalavanar were three brothers who constituted a Hindu undivided family owning a few items of properties. On 27-1-1118 M. E. Subbiah Thalavanar, one of the brothers executed a deed of settlement in favour of his wife, Velammal, covering some items of joint family properties. The terms of the settlement deed will be referred to later. On 20-9-1119 M. E. Subbiah Thalavanar sold his undivided one third share in respect of 3 items of properties in favour of Pandia Thalavanar for a sum of Rs. 1100. One of the items of properties comprised in the said sale was already the subject matter of the settlement by Subbiah in favour of his wife. Pandia Thalavanar died in 1126 M. E. leaving behind his last will and testament in and by which the plaintiff, his son became the sole legatee of his properties.

(2.) Pandia Thalavanar's son filed O. S. No. 89 of 1952 on the file of the District Munsif Court, Shencottah, impleading the two brothers of Subbiah Thalavanar as defendants 1 and 2, and his widow as the 3rd defendant and seeking relief by way or partition and separate possession of an one-third share in the three items of properties which his father had purchased from the late Subbiah Thalavanar.

(3.) The suit was resisted by the defendants on the ground that the sale by Subbiah to the plaintiffs father was not a genuine transaction, and that in any event no relief can be had in respect of item 3 of the plaint schedule which had already been settled upon Valammal by Subbiah even prior to the execution of the sale by Subbiah.