VISWANATHAN Vs. SAVARIMOUTHURAYAN

JUDGEMENT

(1.) DEFENDANTS 3 and 4 who are the purchasers from oubegaranadin (1st defendant), the father of the plaintiffs filed the above appeals having aggrieved by the common judgment and decree of the learned single judge in A. S. No. 1052/1986 and 355/1987 and Cross Objection in A. S. No. 1052/1986.

(2.) THE property originally belonged to Maria Soosai mudaliar who is the father of the 1st defendant, Oubegaranadin. Under Ex. B2, the said Mariyasoosai Mudaliar donated'a'schedule property in favour of his grandsons, namely, plaintiffs, reserving the life interest for the first defendant and Simon, his another son. On 23. 10. 1953, Mariasoosai Mudaliar died. THEreafter the 1st defendant and his brother Simon divided the properties by a partition deed dated 9. 4. 1959 marked as Ex. A4. Pursuant to Ex. A1 Parivarthanai deed, the entire'b'schedule house property came to the 1st defendant. THEreafter under Ex. A5 dated 15. 3. 1971, a partition was effected between the 1st defendant and his wife and the plaintiffs, his minor sons. THE 1st defendant filed a suit in O. S. No. 70/1974 impleading the plaintiffs represented by their mother, to declare that he is the absolute owner of the property in spite of the partition deed Ex. A5. In the order dated 24. 6. 1974 marked as ex. A15, the suit was decreed, since the guardian submitted to the decree by filing a written statement stating that they have no objection to pass a decree as prayed for. THEreafter, the 1st defendant had executed an usufructuary mortgage in favour of defendants 3 and 4 under Ex. A10 dated 22. 10. 1979, with respect to'b'schedule property.

(3.) FROM the facts set out above,it is clear that the entire'b'schedule property belongs to the 1st defendant absolutely. Both the learned Senior Counsels have not raised any doubt about the same. Hence we have to decide the other issues on the said basis. The plaintiffs claim right in the property only under Ex. A5 partition deed and challenge the right of the 1st defendant to sell the property. It is not in dispute that the family of the plaintiffs belongs to Christianity in religion.