K SENGODAN Vs. K DHARMALINGAM

JUDGEMENT

(1.) THE unsuccessful plaintiff in O. S. No. 156 of 1983 on the file of Sub Court , namakkal, is the appellant in the above appeal. He died during the pendency of the appeal and his legal representatives have come on record. THE plaintiff as also defendants 1 to 5, are the children of one Kali Gounder, who died on 4. 7. 1981. THE 6th defendant is the son of the 1st defendant and was a minor at the date on which he was impleaded. He is represented by a court guardian. THE plaintiff and 1st defendant are brothers and defendants 2, 3 and 4 are sisters. THE 5th defendant is their step sister of Kaliappa through his second wife. THE plaintiff's mother is said to have passed away, quite early and the 5th defendant's mother, Kali Gounder's second wife and her three other children as also a daughter of the plaintiff are stated to have died in a car accident on 26. 5. 1967.

(2.) THE appellant/ plaintiff laid the suit for partition and award of separate possession of a 7/18th share in plaint A Schedule properties which were claimed by the plaintiff to be the properties belonging to a Hindu undivided family of which his father, late Kali Gounder was Kartha, besides making adequate provision for certain debts of the Kartha, which the plaintiff claimed to have himself discharged, amounting in the aggregate to rs. 73,000 and also to provide for the discharge of certain other debts of the kartha, amounting to Rs. 1,32,500 in the aggregate, which sums, it was claimed, were due to certain named persons, as seen from the C Schedule.

(3.) THE lower court framed 16 issues to be tried in the first instance. Later, it framed two more issues on 18. 10. 1985 and another issue on 4. 2. 1986. In its detailed judgment dated 24. 3. 1986, the trial court negatived the plaintiff's case. It ruled that all the properties of Kali gounder were his self-acquisitions and upheld the validity of the settlement deeds executed by him. It negatived the plaintiff's claim as regards the alleged debts left by Kali Gounder. It upheld the plea of adverse possession set up by the 1st defendant in regard to the properties covered by the settlement deed dated 5. 2. 1968. THE trial court had also accepted the claim of the 1st defendant to have improved the properties settled on him by his father. But the court observed that in view of its conclusion on other issues, it was not necessary to determine the cost and value of the improvements made by the 1st defendant. THE plea of family arrangement in regard to the release deed of 12. 2. 1973 set up by the 1st defendant was also upheld. As regards the court-fee, the trial court held that the Court-fee paid by the plaintiff on the basis of Sec. 37 (2) of the Court-fees Act was not correct and that the court fee ought to have been paid under Sec. 37 ( 1) of the Act.