DHANALAKSHMI AMMAL Vs. PERIE D GONZAGA

JUDGEMENT

(1.) THIS appeal is being disposed of after notice of motion.

(2.) PLAINTIFF in O.S.No.347 of 1977, Subordinate Judge's Court, Cuddalore, has preferred appeal under Clause 15 of the Letters Patent of this Court against the judgment and in A.S.No.93 of 1980 of a learned single Judge of this Court.

(3.) THERE cannot be any question to the case pleaded by the defendants that the three of Joseph were co-parceners and that the law applied to a Hindu Co-parcenary applicable to the properties in dispute. It also cannot be disputed that as co-owners the sons of Joseph were entitled to equal share and that in the capacity of co-owners they entitled to transfer their respective shares. The question here however, is how purchaser from one of the co-owners, the plaintiff, would be entitled to get possession properties transferred to her. The decision in Visalakshi Animal v. Narayanaswami (1977)2 M.L.J. 88, provides an answer to this question. That is the judgment in the Appeal 1431 of 1973. It says. '....The succession in this case opened on the death of Joseph on 15th October, 1956. that date, John, the vendor of the plaintiff, Biera, the vendor of the second defendant the third defendant alone were alive. They would each be entitled to one-third Arumaikannu, the widow of Joseph who was alive was only entitled to maintenance out income from the property. But since she is dead now, that question also does not arise. John, the vendor of the 'plaintiff had one-third share in the suit properties which he have legally conveyed under Ex.A-11, dated 6th June, 1962 to the plaintiff. Thus, though plaintiff claimed the entirety of the suit properties, he had established his title to one the suit properties. It is well-settled that when the plaintiff claims a larger interest able to establish a lesser interest, to the extent he was able to establish his decree could be granted. The plaintiff is accordingly, given a preliminary decree for and separate possession of his one-third share in the suit properties. I may add view that he will be a co-owner of the suit property, the defendants will not be entitled improvements even if they had made any such improvements.'The above gives us an idea of the law that has to be applied to a transfer by a co his share in tenancy in common. The sale deed which Gov-indarayulu had obtained from third defendant with respect to items 1 to 4 in 'A'schedule (schedule 'B'properties) ordered to be confined to the extent of the share of his vendor, that is to say, defendant in so far as the suit properties in O.S.No.229 of 1963 are concerned. The herein, however, who also is a purchaser from one of the co-owners, i.e., first defendant, sued for a share in the properties held in common by the sons of Joseph or their transferees, alleging that not items 1 to 4 in A schedule but other properties also fell in the common of the tenancy in common. According to her, if the sale deed has to be limited to the of the share of the vendor, such share has to be determined not only in items 1 to schedule but in all the properties held in common with equal rights of the three Joseph.