V JEGANATHAN ALIAS V JAYAKUMAR Vs. V THIYAGARAJAN ALIAS V DEVARAJAN; V NAGENDRAN ALIAS V NAGARAJAN; V THIRUPATHI

JUDGEMENT

(1.) This second appeal has been filed challenging the judgment and decree dated 29.08.1997 passed in Appeal Suit No.15 of 1997 by the District Judge, Thiruchy, confirming the Judgment and decree dated 30.09.1996 passed in Original Suit No.360 of 1992 by the Sub Judge, Thiruchy.

(2.) The suit is filed for partition mainly on the ground that the property originally belonged to one Vadivel Pillai, son of Alagu Pillai, the father of the plaintiff and the defendants 1 and 2. According to the plaintiff, the said Vadivel Pillai has executed a Will in favour of the plaintiff and defendants 1 and 2 in respect of the suit property and another property which is not included in the suit. He died in the year 1975. According to the plaintiff, the defendants 1 and 2 have mortgaged the second item of the suit property to Trichirappalli City Cooperative Bank to meet out the marriage expenses of his sister Ambigha and on 21.05.1990, the defendants 1 and 2 have executed a simple mortgage deed in favour of the third defendant for Rs.40,000/- in respect of the second item of the suit properties. According to the plaintiff, these are all executed only to defraud the share of the plaintiff. There was a Lawyer's notice on 13.09.1987 calling for partition and for which, a reply was given on 13.10.1987. Since the share of the plaintiff was denied, he has given a rejoinder on 26.10.1987. Hence, he claimed 1/3rd share in the suit properties.

(3.) The suit was contested by the defendants on the ground that even as per the Will, the marriage of the sisters viz., Tamilarasi and Ambigha are to be celebrated from and out of the properties mentioned in the Will. The first defendant, being the first son, has been given full rights and after the death of his father on 01.11.1976, the marriage was done and for which, the property was also mortgaged with the City Cooperative Bank. The main case of the defendants was that originally the plaintiff has taken over the three acres of land under lease from the Thiruvavaduthurai Atheenam by himself, as no share was given to others which was in lieu of the property and in fact, subsequently, all of them entered into a partition by which the earlier partition was recorded under Ex.B1 dated 24.05.1987 under which the ovelty of Rs.8,000/- to be paid by the defendants 1 and 2 to the plaintiff in lieu of their share and the plaintiff was enjoying the three acres of land. Therefore, he has relinquished the rights over the property. Since there was already a partition, the suit is bad in law and rightly both the Courts below have believed the document Ex.B1. Hence, the scope in the second appeal is very narrow and therefore, rightly rejected the very suit for partition.