PAUL PONNUSAMI NADAR Vs. JAYAPRAKASH

JUDGEMENT

(1.) DEFENDANTS 3 and 4 are the appellants. The suit is for recovery of possession of the plaintiffs' 8/10 the share in the suit properties. The plaintiffs' case is as follows: Plaintiffs 1 to 3 are the sons and daughter of defendants 1 and 2. The first plaintiff was born on 27-12-1946, the second plaintiff on 2-1-1954 and the third plaintiff on 12-3-1961. Originally the suit properties belonged to the joint family of the first plaintiff and the first defendant. The case of the plaintiffs is that the annual income from the family properties including the suit properties was between Rs. 15000 and Rs. 20000, that there was no need for the father, viz. , the first defendant to alienate any of the family properties, that the first defendant took to immoral ways and squandered away the properties and that in order to protect the interest of the first plaintiff, who was then a minor and other children to be born, the plaintiffs' maternal uncle on behalf of the minor first plaintiff demanded partition of the family properties in 1956, that the first defendant acceded to the demand, that he partitioned the family properties under a document purporting to be a gift deed in favour of the first plaintiff on 15-12-1956 (Ex. A-1), that the first plaintiff has been in possession and enjoyment of that half share in the properties ever since, that after the said partition the first defendant executed a settlement deed a few days thereafter, viz. , 21-12-1956 (Ex. A-2) in respect of the other half share of the family properties, that as per the said settlement deed the properties are to devolve on the first plaintiff and the children of defendants 1 and 2 to be born thereafter retaining in favour of defendants 1 and 2 a life interest in the said properties with no rights of alienation, that the properties were managed by the second defendant and the first defendant compelled the second defendant to alienate some of the properties not for any legal necessity, that the alienation in favour of the third defendant on 1-7-1964 (Ex. B-5) executed by defendants 1 and 2 is not valid and binding on the plaintiffs and that it is void. The present suit is filed for recovery of possession, the first plaintiff claiming 5/10th share plus 1/10th and plaintiffs 2 and 3 each claiming 1/14th share in the suit properties. The further contention of the plaintiff is that the alleged debts mentioned in the mortgage deeds are for immoral purposes, that the second defendant is not the legal guardian as per the Hindu Minority and guardian Act, that the above sale by the second defendant without obtaining court's sanction is void and that the plaintiffs are entitled to ignore the said sale deed and claim a share in the suit property.

(2.) DEFENDANTS 1 and 2 remained exparte. The third defendant filed a written statement contending that the yearly income from the suit properties belonging to the family is exaggerated, that the allegation that the first defendant was leading an immoral life was false, that the first defendant had executed an othi over the suit property on 4-1-1950 for Rs. 2500 to one Ramaswami Konar, that the said othi was assigned in his favour on 20-3-1953, that the first defendant in addition had executed a melothi over the suit property for Rs. 1500 and for discharging the above two prior encumbrances the suit property was sold to him on 1-7-1964 and that the suit debts were discharged and the balance of Rs. 1000 was given to defendants 1 and 2 to meet certain binding legal obligations. The further contention put forward by the third defendant was that the sale in his favour being for discharge of preparation debts is binding on the plaintiffs, that he has improved the lands after his purchase and that on the date of the suit he had no interest in the suit properties, he having gifted the same in favour of his grandson, the fourth defendant and that the plaintiff's are not entitled to a share in the suit property. The fourth defendant was impleaded as a party later on and the fourth defendant adopted the written statement of the third defendant and further filed an additional written statement contending that the gift deed dated 15-12-1956 and the settlement deed dated 21-12-1956 are void and invalid in law and that no interest could be created thereunder in favour of the plaintiffs and the second defendant and in any event the claim is barred by limitation.

(3.) THE trial Court held that the gift deed (Ex. A-1) effected a division in status between the first plaintiff and the first defendant. The trial Judge also held that under Ex. A-2 the properties were given to the issues of defendants 1 and 2. The further finding of the learned Judge is that the sale deed in favour of the third defendant is void, that the othi (Ex. B-1) and the Melothi (Ex. B-4) are however valid and binding on the plaintiffs, that no improvements were effected by the third defendant after his purchase. In the result, a preliminary decree for partition was passed as prayed for and the plaintiffs were held entitled to recover possession of their 8/10th share after redemption of the othi.