ULAGANATHAN CHETTIAR Vs. DURAIRAJAN

JUDGEMENT

(1.) THE second defendant in O. S. No. 1705 of 1973 in the Court of the District Munsif of Vridhachalam, is the appellant. One Arumugha Mudaliar had four daughters of whom one Sellammal died issueless. THE position of the family with reference to the rest of the daughters will be clear from the llowing pedigree:-

(2.) TO go back to the family of Arumugha, he executed Exhibit A-4 under which he bequeathed his properties to his first daughter Valliammal and to his second daughter-s son, Perumal, the first defendant. There was partition between Valliammal and the first defendant on 29th June, 1940. Valliammal, on the same day, executed a will by which she bequeathed items 1 to 4 of Part I of A chedule to the plaint to her grand-daughter Kasthuri and items 1 and 2 of Part II of A schedule to the plaint to the second plaintiff. The plaintiffs claimed that Kasthuri was entitled to the suit properties, some by purchase, and others by bequest. The second defendant, among others, was in possession of the various items of the suit properties and the plaintiffs claimed that their possession was not legal and prayed for declaration of title and possession. The defendant traced their title to certain court-auction purchases in execution of decrees against the first defendant or direct purchases from him. The plaintiffs claimed that the properties were not the properties of the first defendant so as to be sold in Court-auction in execution of the decrees passed against them. The Court-auction was conducted in pursuance of the decree in O. S. No. 544 of 1966 and there was a claim petition M. P. No. 842 of 1966 (Exhibit B-13) by Vijaya, the third wife of Perumal, and the step-mother of the first plaintiff. In the said claim petition, the stepmother of the first plaintiff stated that the properties were in the enjoyment of Valliammal. and Kamalammal, the daughters of Arumugha, after his death, and that they effected a partition between themselves on 29th June, 1940, that after the death of Valliammal the properties were in the enjoyment of her daughter Sundara-valliammal and her grand daughter, Kasthuri, and that after their death, the first plaintiff and his brothers became entitled to the properties. It is also stated that in certain other properties, which were sold in execution, the first plaintiff had an one-fourth share and the other two sons of Perumal Pillai had each one-fourth share, with the result that the sale in execution of decrees against Perumal, would not bind them or their interests in the properties. The claim petition was made on 3rd May, 1966. It was dismissed on 19th January, 1967. At the time of the hearing of the claim petition the claims of Nagaraj, the first wife-s son of Perumal and Ravi, the third wife-s son of Perumal were not pressed, with the result that the Court had only to deal with the one-fourth share of the plaintiff, as put forward in the claim petition. The step-mother, as guardian ad-litem did not take any further action after the dismissal of the claim petition. The present suit was filed on 30th April, 1973, for declaration, possession and mesne profits.

(3.) THE learned District Munsif dismissed the suit in reference to some of the items, but decreed the suit in respect of the items which are now material to the second appeal.