ANNAMALAI Vs. NARAYANASWAMI PILLAI

JUDGEMENT

(1.) THIS is an appeal by the defendant against an order of remand made by the learned Subordinate Judge, Vellore, remaining the suit O. S. No. 462 of 1963 for trial once again by the trial court, the District Munsif Court of Arni. The suit was filed by plaintiffs 1 and 2 for partition of a half share in the A Schedule properties, items 1 to 5, and for declaration of title and possession of the B Schedule properties Items 1 to 3. The suit was decreed by the trial court in respect of them 2 to 5 of A Schedule and was otherwise dismissed. The plaintiffs preferred an appeal. It was heard by the learned Subordinate Judge. He thought that two additional issues were necessary which had not been framed by the trial court and solely on that ground he set aside the order of the learned District Munsif and remanded the suit for fresh trial permitting the parties to adduce additional evidence. Aggrieved by that the defendants have preferred this appeal.

(2.) TO decide the question involved, it is necessary to refer briefly to the pleadings of the parties. There was one Kuppian Pillai. He died leaving two sons, narayanaswami Pillai (first plaintiff) and Govindaraja Pillai. Govindaraja Pillai is now dead the first defendant Annamalai is his son and the second defendant pattammal, his widow. The plaintiffs alleged that Item 1 of A Schedule was acquired by Kuppian Pillai with joint family nucleus and therefore that property was joint family property available for division. Item 2 to 5 of A Schedule were alleged to be ancestral properties. So far as B Schedule properties are concerned, the case of the plaintiffs was that there was an oral usufructuary mortgage by the owners Abbu Pillai, Bondhu Pillai and Mottai Pillai to one Rangaswami, that rangaswami took the mortgage amount from Kuppian Pillai and put him in possession, that the sons of Kuppian Pillai were in enjoyment of B Schedule properties as usufructuary mortgagees, that later on the first plaintiff purchased the equity of redemption under Ex. A-5 dated 3-5-1961 and Ex. A-6 dated 5-51961, that the usufructuary mortgage became extinguished by Section 9-A of the madras Agriculturists Relief Act IV of 1938 and that, therefore, the first plaintiff had become entitled absolutely to the properties. The second plaintiff was stated to be the usufructuary mortgagee from the first plaintiff of the suit properties.

(3.) THE defendants pleaded that Item 1 of A Schedule was purchased by Kuppian pillai with his own funds, that there was no joint family nucleus then, that this property which was the self-acquired property of Kuppian Pillai was later bequeathed by him by a registered will dated 17-8-1927 in favour of Govindaraju pillai, and that, therefore, Govindaraju Pillai and his heirs were entitled thereto. With respect to Items 2 to 5 of A Schedule, the defendants conceded that they were ancestral properties, but pleaded that the first plaintiff left Govindaraju Pillai and his heirs in possession because there were some debts to be paid which the first plaintiff was unwilling to discharge, and that Govindarajulu Pillai and the defendants discharged the debts and ousted the plaintiffs by adverse possession. With regard to B Schedule properties, the defendants pleaded that Govindaraja pillai purchased them orally (from whom they were purchased and whose debts were discharged were not stated) and were in possession in their own right.