P R NALLATHAMBI GOUNDAN Vs. VIJAYA RAGHAVAN

JUDGEMENT

(1.) THE second defendant appeals. The suit out of which the appeal arises were laid in forma pauperis by respondents 1 to 3, who were minors and were represented by their next friend and mother Kamalammal, for partition and a separate possession of their 3/8th share in the suit properties with mesne profits and costs. Sadagopan, who is no other than the father of the plaintiffs (respondents 1 to 3)was impleaded as the first defendant (fourth respondent) herein. Nallathambi goundan. the appellant, figured as the second defendant in the suit.

(2.) THE facts leading to the institution of the suit may be briefly stated: vijayaraghavan, Venkatesan and Ranganathan, the plaintiffs in the suit, are the three sons of Sadagopan, the first defendant, whose father Venkatesa Iyengar instituted two suits O. S. 2 and 26 of 1945 on the file of the Sub Court Salem, for specific performance of two agreements of sale in respect of the suit properties, one agreement related to a portion of the suit properties and had been concluded between Venkatesa Iyengar and Ramaswami Gounder, the father of Nallathambi gounden, the second defendant in the suit. The other agreement related to the remaining portion of the suit properties and was concluded between Venkatesa iyengar, on the one hand, and one Perumal Chetti, on the other. Before the trial of the suits commenced. Venkatesa Iyengar died and his son Sadagopan impleaded himself as the second plaintiff in both the suits and continued the suit as the legal representative of his deceased father. Ramaswami Gounden, the father of the second defendant also died pendente lite with the result the second defendant was impleaded as heir of Ramaswami Goundan and the suits were proceeded with. The trail Court dismissed both the suits. Thereupon, Sadogopan preferred A. S. 186 of 1947 and A. S. 12 of 1948 on the file of the High Court. By judgment dated 11-11950. a Bench consisting of Govinda Menon and Basheer Ahmed Sayeed. JJ. , allowed both the appeals--vide Ex. A--1--with the following observations--

(3.) IN their separate answers (prepared by the same counsel), the first defendant (Sadagopan) and the second defendant (Nallathambi Goundan), attacked the plaintiff's claim as false and unsustainable and as not being for the benefit of the minor plaintiffs. In the first defendant's answer the plaint allegation that the first defendant was not endowed with sufficient education or intelligence was vehemently denied. Though the first defendant admitted that the plaintiffs were living in their maternal grandfather's house along with their mother for the previous five years. he asserted that they used to visit him now and then. The plaint allegation that the half share in the suit properties would be worth rs. 50,000/- was denied, and the allegation that the annual mesne profits from the suit properties would come to Rs. 4,120/-was characterised as an exaggeration. though the fact that the first defendant would be entitled to mesne profits from 14-1950 was admitted. As some of the lands were in possession of the third parties and the other lands were in possession of the second defendant's tenants, the first defendant felt that he could not get actual possession with out taking legal proceedings against third parties and the other tenants. Further, the lands were not in good condition on account of the prolonged litigation and several acres of lands were uncultivable and the first defendant was not in a position to reclaim the same and bring them under cultivation. According to the first defendant, after taking these factors into consideration, he agreed to receive five acres of the best garden lands and five acres of very good dry lands which could be brought under garden cultivation and cash of the Rs. 5,000/ -. Further, under the compromise the first defendant became entitled to receive back the amount of Rs. 2,500/deposited by him in the Sub-Court for specific performance of the decree. Respectable Panchayatdars inspected the properties, took all relevant factors in to consideration and effected the settlement which was bon fide and prudent in the circumstances of the case. Further, the first defendant did not conduct the suits in the Sub-Court as the manager of the joint family. If he did, the compromise entered into by him would be binding on the plaintiffs.