ARJUNA PILLAI Vs. KANDAMMAL

JUDGEMENT

(1.) Plaintiff, who failed in the suit for declaration and consequential permanent injunction, has preferred this appeal.

(2.) Short facts which lead to the filing of the suit are as follows:- The suit properties originally belonged to one Venugopal Pillai who had no issues even through both of his wives. Twenty years prior to filing of the suit, the plaintiff was given in adoption to the said Venugopal Pillai and from that time, he was living with Venugopal Pillai. On 17.2.1988 Venugopal Pillai died intestate leaving behind him his two wives and the plaintiff as his heirs and accordingly, both the wives of Venugopal Pillai and the plaintiff became entitled to the suit property along with the defendants in the suit who are the sisters of Venugopal Pillai. The defendants claim title to the suit property by alleging that the said Venugopal Pillai executed a settlement deed in their favour on 26.7.1975 which is marked as Ex.A3. A reading of the settlement deed would clearly indicate that it was not executed by him out of free will and volition and apart from that Ex.A3 was also not acted upon and it has not come into force. The plaintiff has been in possession of the suit property. A suit for partition was filed on the basis of such Ex.A3 settlement deed by the second defendant against the first defendant in O.S.No.112 of 1984 on the file of the Sub Court, Srivilliputhur wherein preliminary decree was passed and final decree proceedings was also initiated. A Commissioner was also appointed in an Application filed in the final decree proceedings and pursuant to that while the properties are in possession of the plaintiff, with the assistance of police, the second item of the suit property was broke open of which the plaintiff came to know later and that necessitated for filing of the suit for the said relief of declaration and consequential permanent injunction.

(3.) The first defendant remained ex parte. The second defendant filed written statement stating that it is true that the property belongs to Venugopal Pillai, but, he never adopted the plaintiff. He also executed settlement deed in favour of defendants 1 and 2 under Ex.A3 and the property also came to the possession of the defendants and for partition, O.S.No.112 of 1984 has been filed and preliminary decree has also been passed therein and the second defendant, in the final decree proceedings, filed an application for appointment of commissioner also. In such circumstances, in order to defeat the rights of the second defendant under the settlement deed and fruits of the decree in O.S.No.112 of 1984, the first defendant has instigated the plaintiff to file the suit and hence, the claim has to be rejected.