RAMASWAMY GOUNDAR Vs. SELLAPPAN

JUDGEMENT

(1.) THE second defendant in O.S.No.374 of 1972 on the file of the learned First Additional Subordinate Judge, Salem, is the appellant in the second appeal. THE respondent herein filed the suit against his father Kuppusamy Goundar as the first defendant, his father's brother, the appellant herein as the second defendant, one Murugesa Goundar, an alienee of Item No.2 of the suit properties as the third defendant, one Marappa Goundar, the co-owner of one of the items as the fourth defendant and one Muthu Panda ram, alienee of Item No.5 as the fifth defendant. Pending suit, the fifth defendant Muthu Pandaram died and his legal representatives were impleaded as defendants 6 to 11. THE suit was for partition and separate possession of the plaintiffs i1/4th share.

(2.) THE averments in the plaint were as follows: Defendants 1 and 2 were the sons of one Chellappa Goundar. THE plaintiff, defendants 1 and 2 and Chellappa Goundar constituted a joint Hindu family. THE first defendant's father married the plaintiff's mother Pavayee in 1959. Even while the plaintiff was in the womb, the first defendant ill-treated Pavayee and drove her out of the house. THE plaintiff and his mother Pavayee took shelter in her parents" house and the plaintiff was born in 1961. Defendants 1 and 2 and her father Chellappa Goundar colluded together to defeat the plaintiff's rights. THEre was no partition in the family. THE first defendant fraudulently created a sham and nominal sale deed in favour of the second defendant purporting to sell his 1/3rd share in the suit properties to the second defendant. THE document was a sham and nominal one not supported by necessity nor was it for the benefit of the family. THE mother Pavayee filed a suit against defendants l and 2 for maintenance. She also questioned the alienations made by the first defendant in favour of the second defendant. Defendants 1 and 2 settled-Pavayee's claim. THE mother did not take care of the minor plaintiff. He was brought up by his maternal uncle. Chellappa Goundar and defendants 1 and 2 obtained a release deed from Pavayee by paying her Rs.800 in full quit of maintenance claim. It would appear that defendants 1 and 2 obtained a release deed in respect of minor plaintiff's share from the maternal grandfather, viz. Kandasamy Goundar. This release deed was not binding on the plaintiff. It had not been executed by the lawful guardian of the minor plaintiff. THE second defendant also brought about a Settlement Deed dated 21.9.1967 by Chellappa Goundar in respect of his undivided share in favour of the second defendant. It was not valid in law as there could be no gift of undivided share and it was also not for the legal necessity or for the benefit of the family. Chellappa Goundar died in 1970 and on his death, the first defendant and the plaintiff became entitled to share in all the suit properties belonging to the family and the plaintiff's share would be . THE second defendant was getting annual income of Rs.6000 from the suit lands. THE plaintiff was entitled to his claim of Rs.1500 per year. He was entitled to mesne profits at the same rate for three years immediately preceding the suit and for mesne profits for the future days till realisation. THE plaintiff caused a notice to be issued when he came to know that the second defendant was trying to sell the property to the third defendant. THEre was no reply to the notice from the defendants. THE fourth defendant had been impleaded as he had got separate share in the suit survey numbers. THE fifth defendant had purchased a portion of the suit property during the pendency of the suit. Thus the suit came to be filed for setting aside the release deed, for partition and separate possession of the plaintiff's 1/4th share and mesne profits at the rate of Rs.1500 per annum for three years immediately preceding the suit and also for future profits.

(3.) ON a consideration of the materials on record, the learned Subordinate Judge held that the sale deed by the first defendant in favour of the second defendant, copy of which had been marked as Ex.B-1, was true and valid and binding upon the minor plaintiff, that the settlement deed executed by Chellappa Goundar under the original of Ex.A-2 in favour of the second defendant in respect of his undivided i1/3rd share was not valid and not binding upon the minor's share and that the release deed, copy of which had been marked as Ex.B-5 executed by the maternal grandfather of the plaintiff, was not binding upon him. So holding, by judgment and decree dated 10.8.1982, the learned Subordinate Judge granted a decree for partition and separate possession of the plaintiff's 1/12th share.