B GOPALAKRISHNAN Vs. MEGANATHAN

JUDGEMENT

(1.) THE first defendant in O. S. No. 1513 of 1960 on the file of the Court of the VII assistant Judge, City Civil Court, is the appellant. The relevant facts are these: the plaintiff's father, Krishnappa Naicker, was the elder son of one Govindappa naicker the second son being Elumalai Naicker who was the father of defendants 1 to 5 and husband of the 6th defendant. The plaint A schedule property was acquired by Govindappa Naicker under Ex. A-1 on 6-6-1894. After his death, the plaint B schedule property was acquired by Krishnappa Naicker under Ex. A-2, dated 30-10-1916. Krishnappa Naicker died in 1922, leaving the plaintiff, his son. Elumalai Naicker died in 1949 leaving defendants 1 to 5 and the widow, the 6th defendant died and thereupon, defendants 1 to 5 were recorded as legal representatives and besides, the seventh defendants, the daughter was brought on record. The suit was laid for partition of the plaint A and B schedule properties and for allotment of the plaintiff's half share, with past and future mesne profits. The plaintiff alleged that the suit properties were the joint family properties and that he was entitled to a half share therein. The suit was resisted on the ground that the plaintiff's father was given his share and sent out of the family by govindappa Naicker and that the plaintiff was not entitled to any share. It was also contended that, in any event, the defendants had acquired title by adverse possession for over the statutory period.

(2.) THE trial court found that there was no joint family so as to entitle the plaintiff to claim a half share in the A schedule property which was purchased in the name of his grandfather Govindappa Naicker. Inasmuch as the plaint B schedule property was acquired in the name of the plaintiff's father, the trial court found that the plaintiff was entitled to that property alone and, accordingly, dismissed the suit as regards the plaint A schedule property and the movables in the B schedule in which the plaintiff claimed a share, and decreed the suit declaring the plaintiff's title to the B schedule property and for possession of the same. Aggrieved by this decree the first defendant has filed this appeal. Aggrieved by the dismissal of the suit in so far as the plaint A schedule property is concerned, the plaintiff has filed the memorandum of cross-objections.

(3.) THE first question that arise for consideration is whether there was an earlier partition in the family as contended by the defendants. On this aspect, the written statement is very vague with regard to the alleged partition. In paragraph 5 of the written statement of the first defendant, it is alleged that Govindappa Naicker had given away the plaintiff's father's share, and sent him out of the family and that during the lifetime of Govindappa Naicker, he was living with his younger son, elumalai. From this, we are asked to infer that a partition has been effected even during the lifetime of Govindappa Naicker. There is no evidence to show that there was any partition at all either during the lifetime of Govindappa Naicker or thereafter. D. W. 4, who was examined by the defendants to speak about the alleged partition did not claim to have any personal knowledge of the alleged partition. He was examined in the year 1964 when his age was 54 years. It is significant to note that Govindappa Naicker had died in 1914. If during his lifetime, a partition had been effected, it must have been prior to 1914. If the age of D. W. 4 was 54 years when he gave evidence in 1964, he must have been a boy of about 3 or 4 years at the time of the alleged partition, and it is hard to believe that he would have had any knowledge of the partition. If that evidence, goes, then there is no evidence on record from which the case of partition can be made out. The trial court was right in holding that there was no division as contended by the defendants.