DHARMARAJA MUDALIYAR Vs. BEEMARAJ

JUDGEMENT

(1.) THE first defendant is the appellant herein. THE plaintiff filed O.S. No. 390 of 1974 for declaration of his title to the suit property and for an injunction restraining the defendants from interfering with his possession and enjoyment of the suit properties. THE case of the plaintiff is as under:? THE plaintiff is the son of the 2nd defendant through his first wife. THE 2nd defendant had two brothers. In a Kurchit dated 25.5.1944 his father along with his brothers got divided and they have been living separately. THE suit property is one of the properties given to the 2nd defendant in the said partition. Ever since the partition, the 2nd defendant was enjoying the property allotted to him along with the plaintiff and his brothers. THE 2nd defendant executed a registered settlement dated 7.12.1958 with regard to the suit properties and other properties in favour of the plaintiff and his brothers and sisters. Later on, some of the properties belonging to the 2nd defendant and his brothers were acquired by the Government. A major portion of the properties belonging to the 2nd defendant was acquired in that acquisition. In order to compensate the said loss, the three brothers on 9.4.1966 effected another partition of the remaining properties and allotted 64 cents out of acre 92 cents in favour of each one of the brother. Sitarama Mudaliar bequeathed his 64 cents to his son-in-law Kanakasapapathy. Kanakasapapathy in turn sold his 64 cents on 2.5.1968 to Ethirajulu Mudaliar, the brother of the plaintiff. Ethirajulu Mudaliar purchased the same or the benefit of the joint family of the plaintiff and his brothers. Thus the plaintiff and his brothers have got one acre and twenty-eight cents in the suit survey number. Since the 2nd defendant bequeathed his share to the plaintiff and to his brothers in the year 1958 he has not acquired any portion of the properties under the partition deed. THEreafter, for the purpose of an amicable settlement among the brothers Ethirajulu Mudaliar and Ganapathy relinquished their rights in some of the properties in favour of the plaintiff in a registered release deed dated 17.9.1973. Thus the plaintiff became the absolute owner of the suit properties. He is in possession and enjoyment of the same in his own right. Ekambara Mudaliar, the 2nd defendant is not the owner of the suit property and he has no right over the same from the year 1958 onwards. THE plaintiff understands that the 1st defendant had obtained a money decree in O.S. No. 174 of 1971 against the 2nd defendant and had purchased the suit property in a Court auction, sale in an execution proceedings. THE Court auction sale cannot confer any title to the first defendant and it will not be binding upon the plaintiff. THE plaintiff is entitled to the same. THE document dated 7.12.1958 though styled as a settlement deed, it is actually a partition deed, O.S. No. 174 of 1971 is a collusive suit between the 1st defendant and the 2nd defendant. With the help of the decree obtained in that suit, the 1st defendant is disturbing the possession and enjoyment of the plaintiff. Hence, the suit

(2.) THE case of the 1st defendant is as under:? THE alleged settlement deed dated 7.12.1958 is void and inoperative in law. Since the properties are ancestral properties, the 2nd defendant is not entitled to create any settlement in favour of his children. THE settlement was not accepted by the plaintiff. THE settlement deed was not intended to be acted upon. In the registered partition deed between the 2nd defendant and his brothers the Kurchit was cancelled. THErefore, the earlier settlement deed dated 7.12.1958 was cancelled and has become void ab initio. It is not correct to state that Sitaraman bequeathed 64 cents to his son-in-law Kanakasapabathy. It is also not correct to state that Kanakasapabathy sold the property to the brother of the plaintiff. THE sale in favour of the plaintiff by the said Kanakasapabathy was for the benefit of the joint family consisting of the 2nd defendant, plaintiff and his brothers. THErefore, the plaintiff cannot claim exclusive title for himself. THE consideration for the sale was paid from and out of the joint family. THErefore, the plaintiff is not the sole owner of the property. THE release deed dated 17.9.1973 is a sham document. It was created after the attachment in the suit in O.S. No. 174 of 1971 and in E.P. No. 1132 of 1973. Hence, it is hit by the doctrine of Lis Pendens. THE 2nd defendant alone was in possession and enjoyment of the suit property. THE 2nd defendant borrowed money from the 1st defendant on a promissory note for family necessity on 2.7.1968. THE said debt is binding on the plaintiff and his brothers. In order to recover the amount due under the promissory note the suit was filed. THE suit was decreed after contested by the 2nd defendant. After the passing of the decree, in the execution proceedings the property was brought to sale and the same was purchased in the Court auction. Even though the plaintiff know about the attachment and the court auction, he simply kept quiet. He did not make any claim. THE suit is bad for non-joinder of parties. THE nature of the suit was completely changed by the plaintiff by seeking an amendment. It is not open to the plaintiff to state that the document dated 17.12.1958 is both a settlement and a partition deed. Even according to the plaintiff the decree and Court auction sale in O.S. No. 174 of 1971 is binding upon the plaintiff. THE 2nd defendant was the Manager of the joint family. THE 2nd defendant has no right to execute the settlement deed in respect of the joint family properties creating a life interest. THEre was no prayer in the suit to set aside the decree obtained in O.S. No. 174 of 1971. THErefore, it was pleaded that the suit is liable to be dismissed.

(3.) I have heard the rival submissions.