RAMAKRISHNAN REDDIAR Vs. SRINIVASA NAIDU

JUDGEMENT

(1.) The plaintiff is the appellant. The suit was filed by him for a declaration of his title to 8/9 share in item 1 and for declaration of his title to the whole of items 2 and 3 of the plaint schedule and for recovery of possession. There are three items in the plaint schedule. The first item is a house property with some vacant site surrounding and items 2 and 3 are two vacant sites. Though in the form the plaintiff has asked for a declaration of his title to 8/9 share in item 1, there is no dispute relating to his 4/9 share in the same and the dispute is only with reference to the remaining 4/9 share so far as item 1 is concerned. The plaintiff claimed title to this 4/9 share in item 1 under two sale deeds, one dated 17-5-1971 marked as Exhibit A-9 in the case and the other dated 6-3-1975 marked as Exhibit A-13. Exhibit A-13 purports to be a sale deed executed by the first defendant by which the plaintiff claimed that he had purchased 2/9 share in item 1 and the whole of items 2 and 3. The remaining 2/9 share, the plaintiff claims to have purchased under Exhibit A-9 dated 17-5-1971. In so far as item 1 is concerned, there was an alteration in the sale deed Exhibit A-13 in two respects. In mentioning the plaintiffs share which he was already owning, originally it was stated as 4/9, then it was corrected as 6/9 and the second correction is with reference to the share of the executant, namely, the first defendant. Originally, it was stated as 4/9 and later it was corrected as 2/9. The trial Court dismissed the suit on the ground that there is a material alteration in Exhibit A-13 invalidating the document and that therefore the plaintiff could not claim any title, but it granted a decree only in respect of the admitted 4/9 share.

(2.) The learned counsel for the appellant contended that the first defendants title to that portion in item 1 is based on two documents, Exhibits A-7 and A-5. Under Exhibit A-7 dated 17-4-1981, he purchased an undivided 1/9th share from one Kuppusami son of Ramaswami and that is not in dispute. Undex Exhibit A-5 dated 28-1-1967, according to the plaintiff, the first defendant purchased another l/9th share whereas the 2nd and 3rd defendants contended that he purchased 3/9 share. The document mentions: This, the learned counsel for the appellant contended, could only mean an l/9th share and not an 1/3 share. If so construed he would be totally entitled along with the property purchased under Exhibit A-7 to an extent of 2/9th share and since there was a mistake in thinking that he was entitled to 4/9th share origin-ally the document mentioned 4/9 and later on it was corrected as 2/9th when they ascertained the correct position.

(3.) It may also be mentioned that in pursuance of the purchase under Exhibit A-5 dated 28-1-1967 the first defendant took possession of 3/9th share in item 1. However, this was objected to by the plaintiffs father and therefore the first defendant had to file a suit against the plaintiffs father for an injunction. When the suit was pending the plaintiffs father purported to convey the same property under Exhibit A-9. This document, Exhibit A-9 has been held by the trial Court to have been brought into existence fraudulently with fictitious recitals in order to defeat the valid claim of the plaintiff in the earlier suit. We agree with the conclusion that the plaintiffs father wanted to take advantage of a possible construction of Exhibit A-5 as if it conveyed only l/9th share and purported to purchase the remaining 2/9 share from the other sharers. In the light of the recital that there was a partition in Narayana Chettys family and the property being allotted to Durairaj and Deenadayalu, we have to hold that the schedule refers to the entirety of the 3/9th share and not 1/3 or 3/9. It may also be mentioned that the trial Court also held that there was a partition in Narayana Chettys family and therefore the recital in Exhibit A-9 as if there was no partition belies the genuineness of the partition. Therefore, the plaintiffs title can be stated to have been proved only to the extent of 4/9th share which is admitted in the written statement and not to any further portion.