L SUNDARAM Vs. LAKSHMANAN DIED

JUDGEMENT

(1.) The plaintiffs in O.S.No.407/76 on the file of the District Munsif, Vellore, are the appellants in the second appeal. They filed the suit for partition and separate possession of their 34/96 share in suit items 1 to 7, for a declaration of their right to their share of Rs.270.19 in the sale proceeds lying in deposit in O.S.No.612/64 on the file of the same Court and directing them to draw the same from Court deposit.

(2.) It will be easier to narrate the facts leading to the second appeal with a genealogy. GENEALORY THOTTI SAPPANI | | --------------------------------------------------------- | | | | | Thotti Chinna Foreman Lakshmanan Govindasamy Periasamy Babu Periasamy D-2 = DW1 (P.W.5) D-1 = DW2 | | ------------------------------------- | | | L. Sundaram L. Sadagopan Ravichandran D-1 = PW1 D-3 P-2 ============================================================

(3.) The case in the plaint is as follows: The plaintiffs and the third defendant are the sons of the second defendant. The second defendant had four brothers. They were all the sons of one Thotti Sappani. Plaint Schedule items 1 to 3 and a house belonged ancestrally to the family. Thotti Sappani and his sons Thotti Periasamy and Chinnababu were employed as Government Thottis and were also carrying on cultivation of the family lands. From out of the income from the joint family properties, items 4 to 6 were acquired in the name of Thotti Periasamy, the eldest son on 5-11-1940. Foreman Periasamy, Lakshmanan and Govindasamy left the suit village in search of employment, while Sappani and the two elder sons lived in the suit village and continued to enjoy the properties. After the death of Sappani, his sons Thotti Periasamy and Chinnababu were in possession and enjoyment of the properties. In or about 1954 Foreman Periasamy, the first defendant in the suit, retired from service and returned to the suit village and took over the management of the family properties. He wanted his brothers to give him authority in writing for the management of the suit properties. He got a document purporting to be a deed of release executed from Thotti Periasamy, Chinnababu and Lakshmanan, father of the plaintiffs. The brothers executed the document thinking that it was a document empowering the first defendant to have effective management of the family. The first defendant sold the properties to one Ramachandra Reddi, Natesa Goundar (the ninth defendant herein) and Thuthipattu Munusamy. The sales are invalid and will not create any title in them. Govindasamy, the youngest son of Sappani, came to the suit village, filed a suit for partition of his 1/5th share in the suit properties in O.S.No.612/64 impleading his four brothers and the alienees from the first defendant as parties to the suit. The suit ended in a compromise and a final decree for partition and allotment of 1/5th share to the said Govindasamy in the suit properties was passed. As the first defendant had sold the suit properties to Ramachandra Reddi and defendants 9 and 10 without any binding purpose the four brothers and the first defendant became each entitled to 1/5th share in the suit properties. The plaintiffs and defendants 2 and 3 constitute one of the branches of the joint family and each entitled to 1/4th of 4/5th share. Thotti Periasamy and his heirs released their 1/4th share in favour of the second defendant under a release deed dated 30-9-1975. The second defendant also got a release deed dated 11-1-1975 executed from the daughters of Chinnababu. Thus the plaintiffs and defendants 2 and 3 became entitled to the share of Thotti Periasamy and Chinnababu, excepting the share of the fourth defendant, who is one of the heirs of Chinnababu. The fourth defendant has also assigned his share in Court deposit in favour of the second defendant under a deed dated 6-12-1975. The plaintiffs and defendants 2 and 3 have become entitled to the amounts so assigned by the fourth defendant. Thus the plaintiffs and defendants 2 and 3 are together entitled to 6/24 share of Thotti Periasamy and 5/25 share of Chinnababu in the suit properties, in addition to their share, viz., 6/24 share. Thus in items 1 to 7 of the plaint Schedule immovable properties, the plaintiffs and defendants 2 and 3 are together entitled to 7/24 share, while the first defendant and his alienees are entitled to 6/24 share and the fourth defendant to 1/24 share. In the eighth item in Court deposit, the plaintiffs are entitled to Rs.270.19, the first defendant to Rs.190.31 and defendants 2 and 3 together to Rs.270.19, while the fourth defendant is entitled to Rs.31.71. One of the purchasers from the first defendant died pending suit leaving behind defendants 5 to 8 as his heirs. The ninth defendant, another purchaser, died pending suit leaving behind defendants 11 to 15 as his heirs. The tenth defendant, who is one of the purchasers, also died pending suit leaving behind him defendants 16 to 20 as heirs. Since the alienations made by the first defendant in favour of Ramachandra Reddi, Natesa Gounder and Thuthipattu Munusamy are invalid, the plaintiffs are entitled to 34/96 share in item Nos.1 to 7 of the plaint Schedule and defendants 2 and 3 are entitled to 17/96 share each. Defendants 1 and 5 to 10 are together entitled to 4/96 share in the suit properties. The plaintiffs are also entitled to the sale proceeds of the joint family house, which is lying in Court deposit.