VENKATESAN Vs. NEELAYATHAKSHIAMMAL

JUDGEMENT

(1.) THE plaintiff in O. S. No. 94 of 1963 on the file of the court of the Subordinate judge of Cuddalore is the appellant herein. One Govindaraja Gounder had three sons by name Bhoovarahasami, Dhanapal and Janardhanan. Dhanapal died in 1944 leaving behind his widow, the third defendant, and two sons, fourth defendant and the plaintiff. Janardhanan also died leaving behind his widow the 5th defendant, as well as the only son, the 6th defendant in the suit. Bhhoovarahasami sold the suit properties under Ex. B-1 dated 27-1-1945 to one natesa Iyer for Rs. 19,000. That deed was executed by Bhoovarahasami for himself, as father and guardian of his son, the 2nd defendant, and as guardian of his nephews, the 4th defendant, the plaintiff and the 6th defendant, who were all minors on the date of Ex. B-1. After this the 3rd defendant as the next friend of the plaintiff and the 4th defendant instituted O. S. 81 of 1950 on the file of the district Court, South Arcot, for partition of the family properties in the present suit as 'f' Schedule. A certified copy of the plaint has been marked as Ex. B-2 in these proceedings. After a preliminary decree, final decree was passed as evidenced by ex. B-3 dated 2-2-1953. This final decree did not deal with the suit properties at all, while the other properties were divided and allotted to the respective branches. The family properties were allotted to different branches and as far as dhanapal's branch is concerned, the allotment was made jointly in favour of the plaintiff as well as the fourth defendant in the present suit. It was thereafter that the present suit was instituted for partition and separate possession of the appellant's one-sixth share in the properties comprised therein and for recovery of mesne profits. His case was that there was no justifiable necessity, pressure or danger on the estate which warranted or justified the alienation; that there were no debts which demanded immediate settlement or discharge; that the executant of the document, namely, the senior paternal uncle of the appellant had acted to the detriment and prejudice of the junior members of the family, particularly the sons of the deceased brothers; and that therefore the sale was not justified. His further case was that any consideration that might have been received by bhoovarahasami was for his own independent and personal uses and the alienation cannot bind the junior members of the family inclusive of the appellant. According to the appellant, the claimant under the document, namely,, Natesa iyer had knowledge of the existence of the junior members, particularly, the appellant,, and had knowledge that the transfer was not for any legal necessity. With regard to limitation, the appellant had stated in the plaint itself that he was born on 31-8-1941, as evidenced by the extract from the Registrar of Births and deaths maintained by the Villupuram Municipality and the suit was instituted within three years of the date of his attaining majority and that therefore the suit is in time under Art. 44 of the Indian Limitation Act,, though the alienation was in 1945.

(2.) THE alienee under Ex. B-I having died, his widow and children were impleaded as parties to the suit. Their case was that the alienation was binding on all the members of the coparcenary and in particular on the appellant and that in any event the suit was barred by limitation. They also put forward a case that the appellant ought to have insisted upon partition of the suit properties in O. S. 81 of 1950 itself,, after impleading the alienee as a party and the appellant not having done so, the right of the alienee under Ex. B-1, to have the suit properties allotted to the share of Bhoovarahasami in a general partition of all the properties had been taken away and that consequently the appellant was not entitled to institute the present suit for partition. They also contended that the suit was also barred under Order II, Rule 3 C. P. Code.

(3.) ON these pleadings, the trial court framed the following issues: