PACHAYAMMAL Vs. NACHIMUTHU GOUNDER

JUDGEMENT

(1.) THE plaintiffs in O.S. No. 227 of 1976, District Munsifs Court, Pollachi, who succeeded before the trial court and lost before the lower appellate court, are the appellants in this second appeal. THE suit was laid by the appellants for a declaration that the lease deed dated 4th February, 1975, executed by the deceased first defendant in the suit in favour of the second defendant and a sale deed dated 21st February 1975, executed by the deceased first defendant in favour of the third defendant are null and void and invalid and not binding on the appellants, for partition of the A schedule properties into two equal shares and for possession of such a share or alternatively for delivery of possession of the A schedule properties to the first appellant, for a decree for recovery of possession of the B schedule properties in favour of the second appellant and for recovery of a meaner profits, costs etc. THE first appellant is the wife of the deceased Kumaraswamy Gounder, who figured as the first defendant in the suit and the second appellant is their son. In a partition in the family of deceased Kumaraswamy Gounder on 2nd February, 1969, A and B schedule properties fell to his share. Under another document styled as a deed of partition, dated 12th April, 1974, the A schedule properties were allotted jointly to the share of the first appellant and deceased Kumaraswamy Gounder, while the B schedule properties were given to the second appellant. According to the case of the appellants, the first appellant and deceased Kumaraswamy Gounder were joint owners of A schedule properties except as regards an extent of 58 cents in S.F. No. 37/2 and the second appellant was the absolute owner of the B schedule properties. Nether the deceased Kumaraswamy Gounder nor the first appellant was competent under the terms of the document to alienate the A schedule properties without the concurrence of the other person Kumaraswamy Gounder fell into evil ways and was leading a wayward life which resulted in the appellants being driven out of the family. A publication was made by the appellants in the newspaper to the effect that the deceased Kumaraswamy Gounder bad no right whatever to deal with the A and B schedule properties but in spite of it, Kumaraswamy Gounder colluded with respondents 1 and 2 in the second appeal and croated a lease deed in the name of the first respondent and a sale deed in favour of the third respondent in respect of certain properties. According to the appellants, deceased Kumaraswamy Gounder did not have any right whatever either to sell or even to lease the properties belonging to the first and second appellants and hence, the sale deed as well as the lease deed are null and Void and not binding on the appellants. Kumaraswamy Gounder died on 30th August, 1975 and thereupon respondents 3 and 4, his wife and mother respectively, were impleaded as defendants 4 and 5 in the suit as his legal representatives. Inasmuch as Kumaraswamy Gounder had also been adjudicated as an insolvent, the Official Receiver of Coimba-tore, the 6th respondent herein, was impleaded as the 6th defendant in the suit.

(2.) EXCEPTING the 4th respondent in this second appeal, the rest had filed written statements disputing the claim made by the appellants. In the written statement filed by the first respondent, he questioned the status of the first appellant as the legally wedded wife of the deceased Kumaraswamy Gounder and stated that the third respondent alone is entitled to inherit the properties of the deceased Kumaraswamy Gounder as his legally wedded wife. Illicit intimacy between the first appellant and the deceased Kumaraswamy Gounder was pleaded and the docu. ment dated 12th April. 1974, on the basis of which the appellants claimed rights in the properties, was characterised as a collusive and void document not binding upon the first respondent The first respondent put forth the plea that he took possession of the properties leased out in his favour from one Deivanayagam and he had also in turn got recorded his name as a cultivating tenant and therefore, the first appellant was not entitled to dispute the validity of the lease deed in favour of the first defendant. The claim made by the first appellant to partition the suit properties as well as mesne profits and other incidental reliefs was also disouted by the first respondent.

(3.) THE third respondent in her written statement denied that the first appellant was the legally wedded wife of deceased Kumaraswamy Gounder and stated that she was only his concubine. THE third respondent, according to her, was the legally married wife of Kumaraswamy Gounder and Kumaraswamy Gounder appeared to have contracted some sort of marriage with the first appellant which led to the filing of a complaint by the third respondent in C.C. No. 320 of 1954 during the trial of which Kumaraswamy Gounder denied the marriage between him and the first appellant. THE second appellant, according to the third respondent, was not the son of the deceased Kumaraswamy Gounder and the appellants are not entitled to any share in the properties. THE locus standi of the appellants to question the alienations made by the deceased Kumaraswamy Gounder, when he was alive, was also disputed. THE document dated 12th April, 1974 on the basis of which the appellants claimed rights in the suit properties was claimed by the third respondent not to confer any rights whatever on the appellants.