MARI UDAYAR Vs. RAMASAMI UDAYAR

JUDGEMENT

(1.) The defendants in a suit for partition, who are aggrieved over the modification of the judgment of the trial court by the first appellate court, are the appellants herein.

(2.) . The following short facts are noticed in the pleadings of the parties. There are A and B schedules of properties. A schedule measuring 6 acres is comprised in S.No.10/1 and B schedule measuring 39 cents comprised in S.No.8/5. The plaintiff claims 1/3rd share in A schedule and 2/3rd share in B schedule on the basis of a sale deed dated 1 3.9.1981 from one Sadachi Ammal. The first defendant and one Kathappa Udayar and one Periyathambbi were brothers, of whom Kathappa Udayar was the husband of Sadachiammal, whose son was Alagappa. Since Periyathambi orally relinquished his 1/3rd share, the first defendant and Kathappa became entitled to equal share in A schedule. The B schedule property was the exclusive property of Kathappa Udayar, who in turn executed a settlement deed in respect of 1/2nd share in the schedule and the entire B schedule on 5.4.1951 in favour of his wife Sadachi and his minor son Alagappa. Alagappa died ten years ago leaving behind him his mother Sadachi, wife Pappathi and daughter Jayakodi. Sadachi was entitled to half share under the settlement as settlee and 1/3 rd share in B schedule. The third defendant is a purchaser from Pappathi and Jayakodi of their share and therefore they are co-owners. Sadachi agreed to sell her 1/3rd and 2/3rd shares to one Velusamy and one Kandasamy on 6.5.1981 for a sum of Rs.18100/- of which Rs.5000/- was received by way of advance. The balance of Rs.13000/- was paid by the plaintiff on 30.9.1981. Before registration of the sale deed dated 30.9.1981, Sadachi had executed a sale deed of the suit property in favour of the third defendant for Rs.17000/- on 14.10.1981 and the deed was registered on the same date. The plaintiff has executed a Muchalika in favour of the mediator Ramasamy on 6.11.1981 setting out those aspects and admitting Rs.5000/- paid by him to Sadachi. Hence, the suit for partition with a prayer for preventive injunction restraining the defendants from cutting the trees in the suit properties.

(3.) The said suit was contested by the third defendant by filing a written statement, which was adopted by the defendants 1 and 2, stating that the plaintiff and the defendants are not co-owners; that the settlement deed dated 6.5.1981 by Kathapopa to his wife and minor son is void in law and for a co-partner could not settle his undivided share or any share of the joint family property; that the plaintiff took the registered sale deed from mediator on executing a muchalika on 6 .11.1981 attested by Velusamy and Kandasamy; that there was a division in the defendants' family on 12.6.75; that Velusamy, Kandasamy and Sadachi attempted to trespass and disturb the possession of the defendants 1 and 2 and so the defendants 1 and 3 filed OS No.1734 of 1981 before the District Munsif, Salem and the suit was decreed as prayed for, against which no appeal was filed and it became final and conclusive, and as such, the contention of the plaintiff are barred by res-judicate, and hence, the suit was to be dismissed.