JAYACHANDRAN Vs. NEELAKANTA REDDIAR

JUDGEMENT

(1.) The plaintiff is the appellant herein.

(2.) A judgment of the learned Subordinate Judge, Cuddalore dismissing the suit for partition filed by the appellant/plaintiff in respect of the plaint A and B Schedule properties and also in respect of the claim for past mesne profits is under challenge.

(3.) The appellant/plaintiff sought for a preliminary decree for partition of the plaint Schedule properties on the following grounds: The plaintiff, who was born on 10.2.1953, is the undivided son of the first defendant, while the second defendant is his mother. The plaintiff and the first defendant are members of the joint family. All the suit properties in plaint A, B and C Schedule except a few originally belonged to his grandfather Sadasiva Reddiar. Sadasiva Reddiar obtained most of the properties for his share in the partition between him and his brother. The suit properties are all ancestral joint family properties belonging to the plaintiff and his father first defendant. Sadasiva Reddiar died about 20 years back. There was no need or necessity for borrowing at any time. After the death of Sadasiva Reddiar, the first defendant was acting as the manager of the family. The first defendant spent all the family income for his immoral habits. The first defendant borrowed money from others, and they were all tainted with illegality and immorality. The borrowings made by the first defendant are not binding on the plaintiff. The first defendant executed a promissory note for Rs.6,000/- in favour of the third defendant, and the said borrowing was made for his illegal purposes. On the basis of this pronote, the third defendant instituted a suit in O.S.No.37/62 against the first defendant on the file of Sub Court, Cuddalore, and a decree was passed, which is fraudulent and collusive. Pursuant to the said decree, almost all the family properties described in the plaint Schedule were attached. The properties were grossly undervalued. The properties in A Schedule were sold in court auction, and were purchased by the defendants 3 and 4. The said sale was conducted without any publicity, and hence, the same was vitiated by fraud. The sale is therefore invalid. What was sold in court auction was only the right, title and interest of the judgment debtor namely the undivided half share in the properties sold and nothing more. The said sale is not binding on the plaintiff, since he was not a party to the decree. The first defendant sold B Schedule properties to the defendants 8 to 21. The defendants 8 to 21 are not bonafide alienees for value and consideration. The defendants 3 to 5 are in possession of A and B Schedule properties and are not entitled to remain in possession in excess of the half share of the first defendant. They are liable to pay mesne profits at Rs.1,000/- for a period of three years prior to the date of sale. Therefore, the plaintiff's half share in those items in A and B Schedule should be separated. The first defendant is in possession of C Schedule properties. The plaintiff is deemed to be in joint possession along with the first defendant of the three items of C Schedule properties. Those properties should be partitioned. The defendants are evading for settlement. If the items 26 to 30 of C Schedule are joint family properties, the plaintiff is entitled to a half share in the same. Hence this suit.