R PURUSHOTHAMAN Vs. K DHANAPAL

JUDGEMENT

(1.) RAMASWAMI, J.-The plaintiffs are the appellants . A suit was filed by them on 8th April, 1975, for reopening a partition already effected on 1lth September, 1953, and for partition and separate possession of their share in the properties. The prior partition dated 1 lth September, 1953, was executed by the three sons of one Krishnaswami Chetty who are defendants 1, 2 and 4 herein and the third defendant who is the wife of the said Krishnaswami Chetty. The plaintiffs are the children of the fourth defendant. The said Krishnaswami Chetty died on 19th December, 1951, leaving the fourth defendant, the father of the plaintiffs, who is the eldest son, and two other sons, defendants 1 and 2 of whom the second defendant was then a minor represented by his mother and guardian. This suit has been filed more than three years after the first plaintiff had attained the age of majority. One of the main defences in the suit was that the suit is barred by limitation. The learned Judge has accepted this contention. However, since some of the landed properties situated in some far off villages including a mango grove were not divided, the learned. Judge also went into the question Whether the partition dated 11th September, 1953, was fair and equal and ultimately held that the partition was fair and reasonable and does not call for any interference. After giving those findings, the learned Tudge gave a decree for partition as prayed for in respect of those items which were not included in the partition dated. 11th September, 1953. It is against this decree and judgment the present appeal has been filed.

(2.) THE learned counsel for the appellants contended that the suit is not barred by limitation mainly relying on certain observations of the Supreme Court in Ratnam Chettiar v. S.M. Kuppuswami1, where it was observed by the learned Judges las follows:

(3.) IT was then contended by the learned counsel for the appellants that in respect of the mango garden shown as item 6 of the plaint A schedule and the six items of properties shown in the additional written statement, there was a partition arrangement under Exhibit P-7 in 1970 and that under that partition all the six items mentioned in the additional written statement fell to the share of the plaintiffs. father, the fourth defendant in the suit, and therefore, the decree restricting the plaintiffs. right in respect of the properties to a 5 24th share is incorrect. The learned Judge did not accept the contention of the petitioner that there was any partition in the year 1970 and on a construction of Exhibit P-7, the learned Judge felt that it would not amount to a partition at all. We are in entire agreement with the learned Tudge. Apart from the fact that the recitals" in" Exhibit P-7 do not show that it is a partition as such but is only an agreement to partition, if it is to be treated as a deed of partition, it is inadmissible in evidence. Exhibit P-7 is neither written in any stamp-paper nor registered and the value of the property is more than Rs. 100. Further even for evidencing possession, we cannot rely on the same because the mango grove of the total extent of 8 acres odd was shown as item 6 in the schedule A to the plaint and it had not been claimed in the plaint that the mango garden was ever divided in 1970 and only a little over 2 acres was allotted to the plaintiffs. father. The plaintiffs, therefore, have not asserted that they had been in possession of the properties allotted to fhem under the partition agreement of the year 1970 adversely to the defendants in order to claim any right even on the basis that it was a partition arrangement. We are therefore, unable to agree with the learned counsel for the appellants that either a portion of the mango garden was actually allotted to the plaintiff or that the properties shown in the additional written statement were allotted to the plaintiffs in a partition of the year 1970.