GOVINDA IYER Vs. KUMAR

JUDGEMENT

(1.) This petition has been filed by the 8th respondent in the appeal to transpose him as the 3rd appellant in the second appeal.

(2.) Plaintiffs 3 and 4 in O. S. 545 of 19M on the file of the District Munsif, Salem, are the appellants in the second appeal. The father of the appellants herein as the sole plaintiff filed the suit for partition and separate possession of his one third share in the suit properties. His case was that his grandfather Rajulier and his wife Kasturi Bai Ammal had executed a settlement deed Ex. Bi dated 1-31937, that as per that settlement, he is entitled to a third share in the suit properties, that Rajulier and his wife had executed another settlement deed, Ex. B11, dated 12-5-1944 giving the suit properties not only to the sons of the first wife of his father, Krishna Iyer, but also to the children of his second wife, the first defendant that Rajulier and his wife had no power to alter the provisions made in the earlier settlement deed, Ex. B1 dated 1-3-1937, and that, therefore, the plaintiff is entitled to seek partition on the basis of the settlement deed dated 1-3-1937 ignoring the later settlement deed dated 12-51944. The suit was resisted mainly by the second wife and her children who are defendants 2 to 7, their contention being that the original settlement deed dated 1-3-1937 was not given effect to, that, the only settlement which was acted upon by the parties was only the settlement deed, Ex. B11, dated 12-51944, that as per the said settlement deed, specific properties have been allotted to each of the defendants and the plaintiff, and that all the parties having acted upon and taken possession of the properties as per the later settlement deed dated 12-5-1944, the suit filed by the plaintiff for partition, on the basis of the original settlement deed dated 1-3-1937, is not maintainable. They also contended that the specific properties allotted to them under the settlement deed dated 12-5-1944, having been exclusively enjoyed by them ever since that date, they should be taken to have acquired title by adverse possession if the settlement deed Ex. B11 is taken to be invalid.

(3.) Pending the suit, the original plaintiff Gopal, died and his wife was, therefore, impleaded as second plaintiff and her children as plaintiffs 3 and 4. The trial court held that Rajulier and his wife, who had executed the settlement deed Ex. B1 dated 1-3-1937, had no power to revoke the same and execute a fresh settlement deed, as they have done under Ex. B11 dated 12-5-1944, and that, therefore, the later settlement deed, Ex. B11 cannot be taken to be valid. But having regard to the fact that defendants 2 to 7 have enjoyed specific properties allotted to them under the later settlement deed dated 12-5-1944, exclusively and in assertion of their own right, it held that they should be taken to be in adverse possession of those properties since 1944, that the suit in this case having been filed In 1966 long after the plaintiff attained 21 years of age, the suit, should be taken to be barred by time as against defendants 2 to 7, since defendants 8, and 9 did not contest the suit, a preliminary decree was passed against them for partition and separate possession of the plaintiff's one- third share in respect of the properties allotted to the children of the first wife Ananthammal. Aggrieved against the dismissal of the suit as against defendants 2 to 7, plaintiffs 2 to 4, the legal representatives of the original plaintiff, filed an appeal. That appeal also was dismissed by the lower appellate court holding that defendants 2 to 7 have acquired title by adverse possession as they have been in exclusive possession of the properties in assertion of their own right from 12-5-1944 the date of the last settlement deed Ex. Bill executed by Rajulier and his wife. Plaintiffs 3 and 4 have filed the present second appeal questioning the concurrent findings of both the courts below that defendants 2 to 7 have perfected title to the suit properties by adverse possession and, therefore, the plaintiffs' suit for partition and separate possession on the basis of the settlement deed dated 1-3-1937, is barred by time. Pending the appeal, the first appellant has attained majority and at his instance he has also been appointed as next friend and guardian of his sister, the second appellant.