VENKATAMMAL Vs. SINNA VENKATARAMA CHETTIAR

JUDGEMENT

(1.) THE plaintiff is the appellant. She filed the suit for redemption of a mortgage and for partition and possession. THE suit property S. No.449 is of an extent of 8.2 acres in Kalingiyam village. THE property was owned by one Raman Chetty, who had eight sons. He usufructuarily mortgaged the western half for Rs.150/- in favour of one Ranganna Gounder under Ex. A-7 dated 10-6-1919. THE eastern half was subsequently mortgaged usufructuarily by him, to Narayana Chetty under Ex. A-8 dated 1-10-1923. THE plaintiff claims title to 15/42 share under three sale deeds of Ex. A-14 dated 4-5-1951, Ex. A 15 dated 27-11-1950 andEx A-16 dated 27-3-1961.

(2.) PERIA Venkataraman, first son or Raman Chetty sold his l/7th share to Karuppan Chetty under Ex, A-4 dated 20-5-1924, Karuppan, Chetty died leaving his sons PERIA Raman and Chinna Raman. Under Ex. A-14 dated 4-8-1961 PERIA Raman and Chinna Raman sold their l/7th share to the plaintiff. The first son PERIA Venkataraman and another son Narayanan died and Kumban and defendants 1 to 4 constituted the members of the Hindu Family each being entitled to l/5th share out of the remaining 6/7th share that remained. Under Ex A-5 dated 16-10-1940, the fourth defendant sold his l/6th share to Karuppan Chetty. Under Ex A-15 dated 27-11-1950 Karuppan Chetty sold his 1/6th share to the plaintiff. The plaintiff thus became entitled to 13/42 share, that is, l/7th share under Ex. A-14 and 1/6th share under Ex A- 15. Subsequent to the death of Kumban, defendants 1 to 4 got the properties by survivorship, each being entitled to 1/4th of 6/7th share, namely 3/14 share each. Out of this, the fourth defendant had already sold his l/6th share under Ex A-5 dated 15-10-1940, thus retaining 3/14 minus 1/6th = 1/21 share. Under Ex A-16 dated 27-3-1961, the fourth defendant sold his 1/21 share to the plaintiff for Rs.450/- Thus, the plaintiff became entitled to 15/42 share under Exs. A-14 to A-16.

(3.) THE trial court round that under Exs. A-14 and A-15 the plaintiff purchased 13/42 share in the suit property and she was not entitled to 1/21 share as per Ex A- 16. It also held that the plaintiff was not a purchaser directly from the coparcener but was an alienee from the alienee of the coparcener of an undivided interest. In the circumstances, the trial court held that the remedy of the plaintiff was to claim damages for breach of covenant of title and not for redemption and partition. It also found that the plaintiff had not been in possession within 12 years of his suit and that defendants 2 and 3 had acquired title by adverse possession. It further held that the judgment in O. S. No.279 of 1953 operated as res judicata and that the defendants were not entitled to any claim for improvements. THE trial Court also rejected the plea of disclose raised by defendants 2 and 3 and held that there was no proof that the plaintiff or the predecessor-in-interest abandoned the rights to the suit property. Finally, it held that the suit was barred under Order 2, Rule 2 C. P.C.