LAWS(MAD)-1992-12-29

S CHINNAYYAN Vs. CHITHAMBARAM

Decided On December 15, 1992
S.CHINNAYYAN Appellant
V/S
CHITHAMBARAM Respondents

JUDGEMENT

(1.) THE defendants are the appellants in this second appeal arising out of a suit for partition. In this second appeal, this Court is concerned only with items 1 and 8 of the suit properties.

(2.) WITH reference to item No.1, as against the claim of the defendants that the plaintiffs" suit was barred since Ex.A-6=(Ex.B-1) mortgage dated 22.11.1089 ME (=27.11.1914 A.D) in favour of the 1st defendant's mother was not redeemed at all, the trial Court has held that suit item No.1 was not the subject matter of Ex.A-6 at all and has granted decree for half share therein to the plaintiffs. No doubt, the lower appellate Court did hot meet this finding of the trial court by any discussion, but it held that Ex.A-6 mortgage did not take effect and that, therefore, the defendants are not entitled to any right under the said mortgage. Thus holding, the lower appellate court concurred with the trial court with reference to item 1 and granted decree to the plaintiffs for the abovesaid half share therein.

(3.) WITH reference to item No.8, the trial court granted l/4th share to the plaintiffs and 3/4th share to the 1st defendant. But, the lower appellate court granted each half share. Now, the defendants-appellants claim that the judgment of the trial court should be restored. This controversy can be understood if the genealogy of the parties is make known. The original ancestor senior Aundi had two sons, viz., junior Aundi and Suppandi and the plaintiffs are paternal grandsons of junior Aundi The 1st defendant is the son of the abovesaid Suppandi. Item No.8 stands in the name of senior Aundi and Suppandi, it having been purchased by both of them in about the year 1902. According to the trial court, it is not the joint family property of the family of senior Aundi, but separate property of both senior Aundi and Suppandi, each having half share therein. To come to this conclusion, the trial court relied on the document relating to the earlier settlement proceeding that took place with reference to the said property. The trial court observes that the said property. The trial court observes that the said document Ex.B-6 shows that all the three persons, viz., senior Aundi, Suppandi and junior Aundi had categorically admitted that this item was purchased by senior Aundi and Suppandi. The said purchase is borne out by Ex.B-8. So, according to the trial court, the first defendant, the son of Suppandi would get half share of his father Suppandi and another l/4th share from senior Aundi out of the remaining half share, and thebalance l/4th share alone would go to the plaintiffs" branch. But, the lower appellate court has held that item No.8 is the join family property of the family of senior Aundi and his sons and that hence, the 1st defendant would get 1/2 share and the balance 1/2 share would go to the plaintiffs. But, the learned counsel for the appellants contends that the lower appellate court did not consider the above referred to statement made by junior Aundi in Ex.B-6 at all. According to him, if that statement is taken into account that would amount to an admission by junior Aundi that the property purchased under Ex.B-8 viz., the abovesaid item No.8 is only the separate property of the abovesaid two purchasers, viz., senior Aundi and Suppandi. He also argues that there was no plea or proof regarding the existence of joint family nucleus having sufficient income to enable the abovesaid property to be purchased for the joint family in the name of Suppandi and senior Aundi. In this connection, he also relies on the decisions in K.Obul Reddy v. B.Venkata Narayana Reddy, (1984)3 S.C.C. 447.A.I.R. 1984 S.C. 1171: (1984)2 Land L.R. 255 and Ranganayaki Ammal v. Srini-vasan, (1978)1 M.L.J. 56. On the other hand, the learned counsel for the respondents submits that the allegations made in the plaint would amount to the abovesaid plea. Further, he also drew my attention to the following passage in Mulla's Hindu Law, sixteenth edition at page 260, which cites Srinivas v. Narayan, (1954)1 M.L.J. 630: 67 L.W. 515.1954 S.C.J. 408:57 Bom. L.R. 678:1954 S.C. A. 878. A.I.R. 1954 S.C. 379, as authority for the said passages: