R K SAMBANDAM CHETTIAR Vs. MARUDAMBAL

JUDGEMENT

(1.) This Second Appeal is filed by the second defendant in O.S.No.45 of 1973, on the file of the Court of the District Munsif, Thiruvaiyaru, challenging the legality and correctness of the judgment and decree of the learned Subordinate Judge, Thanjavur, in A.S.No.119 of 1975, confirming the judgment and decree of the trial Court in O.S.No.45 of 1973.

(2.) The facts of the case are briefly as follows: One Subramania Pillai died in the year 1960 leaving behind him his two daughters Marudambal and Mariyayi and three sons Manickam Pillai, Arumugham Pillai and Murugesa Pillai. Murugesa Pillai left the family 18 years ago and his whereabouts were not known and his wife is one Anna-poornathammal. Arumugham Pillai, one of the sons of the deceased Subramania Pillai, filed a suit in O.S.No.392 of 1960 on the file of the Court of the District Munsif of Thiruvaiyaru, for partition and separate possession of his l/5th share in the properties left by the said Subramania Pillai. Ex.B-2 is the copy of the plaint filed by Arumugham Pillai in O.S.No.392 of 1960. O.S.No.392 of 1960 was decreed and Ex.A-1 is the judgment granting partition in the said suit. In an appeal the said judgment was confirmed in A.S.No.1 of 1962, marked as Ex.A-2. A final decree was also passed in I.A.No.1433 of 1965 in O.S.No.392 of 1960, on the file of the Court of District Munsif, Thiruvaiyaru, which is marked as Ex.A-3. As per the final decree Ex.A-3, the shares were allotted to the five sharers as mentioned in the final decree. The present plaintiff Marudambal, who was the third defendant in the previous suit, had instituted the suit O.S.No.45 of 1973 under appeal against Manickam Pillai, her brother and the first defendant in the earlier suit, praying for a partition and separate possession of her half share in the suit properties. She had also impleaded one P.K. Sambandam Chettiar, the appellant herein, as the second defendant in the suit. In the plaint Marudambal, the first respondent herein and the plaintiff in the suit under appeal, alleged that though there was a partition final decree as per Ex.A-3 yet as per the decree separate shares had not been allotted to Marudambal and Manickam Pillai. It is her specific case that the shares allotted to her and Manickam Pillai had not been specifically divided.

(3.) The appellant herein, the purchaser from Manickam Pillai, contended that specific allotment had been made in the earlier final decree passed as per Ex.A-3 to Marudambal and Manickam Pillai and as such the second suit is not sustainable.