KALIDOSS PILLAI Vs. PALANI SUBBAN PILLAIDIED

JUDGEMENT

(1.) This is an appeal by the second defendant in the suit. The suit has been filed for partition. The suit was originally instituted on the file of Subordinate Judge's Court, Karaikkal in O.S.No.30 of 1977 and later transferred to the file of Additional District Judge of Pondicherry at Karaikkal. The plaintiff and defendants 1 and 2 are brothers. During the pendency of the suit before the learned Subordinate Judge, Karaikkal, it was represented by the second defendant that there was a compromise and hence, he filed an application to pass a decree in terms of the compromise entered into among the plaintiff and defendants 1 and 2 in the presence of mediators. The plaintiff, however, contended that there was no division and he never singed the memorandum of compromise. Learned Subordinate Judge, after enquiry found that there was a compromise which was reduced into writing and signed by the parties and accordingly, he passed a preliminary decree in terms of the compromise.

(2.) The preliminary decree passed by the learned Subordinate Judge was the subject matter of appeal before this Court in A.S.Nos.488 and 731 of 1980. Those appeals were heard along with C.R.P.Nos.1299 and 2581 of 1980, and this Court, by judgment dated 23.9.1987, held that the conclusion of the learned Subordinate Judge that there was a concluded compromise among the parties which was reduced into writing could not stand and in this view of the matter, the judgment and decree of the trial Court was set aside and the matter was remitted to the Subordinate Judge's Court, Karaikkal for fresh consideration.

(3.) The suit was transferred to the Court of Additional District Judge, Pondicherry at Karaikkal and renumbered as O.S.No.9 of 1988. Learned Additional District Judge has passed a preliminary decree holding that the plaintiff and defendants 1 and 2 would be entitled to 1/3rd share each in A-schedule properties described in the plaint and in item No.1 of B-schedule and in the movable properties described under schedule C-1 of the written statement. Learned Additional District Judge also held that the plaintiff and defendants 1 and 2 are not entitled to any share in the properties described as C-schedule of the plaint and in the house No.36, Thirunallar Road as they are the exclusive properties of the first defendant. Learned Additional District Judge also held that neither the first defendant,nor the second defendant could claim any share in the properties given to the plaintiff under Ex.A-10. It is against the judgment and preliminary decree passed by the learned Additional District Judge, Pondicherry at Karaikkal, the present appeal has been preferred by the second defendant.