CHANDRASEKARAN Vs. PALANISAMY

JUDGEMENT

(1.) This appeal is preferred against the judgment and decree in O.S.No.256 of 1985 on the file of Subordinate Judge's Court, Namakkal. The plaintiff is the appellant herein. He filed the suit for partition claiming 1/3rd share in the plaint B-schedule properties. The plaintiff is the son of the first defendant and the second defendant is the brother of the plaintiff and the third defendant is his mother.

(2.) The case of the plaintiff is that there was a partition in the family of the plaintiff in the year 1964, to be precise on 10.8.1964 (Ex.A-1) and the said partition was arrived at between the first defendant (plaintiff's father) and the father of the first defendant. According to the deed of partition dated 10.8.1964, certain properties were allotted to the first defendant's father and certain other properties were allotted to the first defendant. Admittedly, the properties were joint family properties and the properties allotted to the first defendant in the deed of partition continued to be joint family properties in his hand. The case of the plaintiff is that the plaint B-schedule properties have been settled by the first defendant in favour of his wife, third defendant by a deed of settlement dated 5.6.1974 (Ex.A-2) and according to the plaintiff, the deed of settlement is a void document as his father had no power to settle the entire B-schedule properties. In the plaint the plaintiff has stated that the third defendant has sold some of the properties belonging to the joint family in favour the defendants 4 to 6. In so far as the seventh defendant, who is the contesting defendant, is concerned, he is said to have lent money to the third defendant, mother of the plaintiff and the seventh defendant also filed a suit in O.S.No.180 of 1984 on the file of Subordinate Judge's Court, Namakkal and obtained a decree. He also filed execution petition in E.P.No.56 of 1985 and proceeded against B-schedule properties which were settled in favour of the third defendant. It is also stated in the plaint that the Court ordered sale of properties and auction sale was posted on 9.10.1985 and hence, the plaintiff filed the suit claiming 1/3rd share in the plaint B-schedule properties.

(3.) All other defendants except the seventh defendant remained ex parte, though the defendants 5 and 6 and also 13 have filed written statements. As far as the seventh defendant who is the contesting defendant is concerned, in his written statement he has admitted the settlement of B-schedule properties in favour of third defendant on 5.6.1974 and he also admitted that the third defendant was in possession and enjoyment of those properties. His case was that the suit itself is bad as it has been fraudulently instituted to defeat the just claims of the seventh defendant. It is also his case that the settlement would be valid in so far as the 1/3rd share of the first defendant is concerned. On the basis of the above pleadings, the trial Court has framed as many as 12 issues for consideration and ultimately dismissed the suit for partition. It is against the judgment and decree, the present appeal has been preferred.