VENKATESAN Vs. K NAMADEVAN

JUDGEMENT

(1.) THIS appeal has been preferred against the decree and Judgment passed in O.S.No.1113/1996 on the file of the II Additional Judge, City Civil Court, Chennai. The suit is for partition and also for mesne profits. The Defendants are the appellants herein.

(2.) THE short facts sans irrelevant particulars are as follows: 2(a) THE plaintiff and Defendants 2 to 4 are the sons of the first Defendant. THEy constituted a Hindu undivided joint family. THE plaint schedule property is the ancestral property devolved on the joint family of the plaintiff and the Defendants. THE plaint schedule property was purchased by the first Defendants father and his brother Munusamy Mesthri out of the joint family income. THE plaintiff's grand mother Poodurammal was looking after the plaint schedule property on behalf of the plaintiff and the Defendants. After the death of Poodurammal the first Defendant and his brother Munusamy Mesthri were in possession and enjoyment of the plaint schedule property. 2(b) on the allegation that the above said Munusamy Mesthri and his LRs have executed a release dated 28.8.1965 in favour of the second Defendant while the plaintiff was a minor is not true. THE first Defendant was aged 92 years and he was suffering from Paralitic attack and taking advantage of the ill health of the first Defendant-Desavalu, the second Defendant had cunningly obtained the above said release deed. THE second Defendant was working as an assistant in the Criminal Court at Gorge Town, Chennai and there was a criminal action taken and pending against the second respondent in connection with misappropriation of funds. THE factum of release deed in favour of the second Defendant was known to the plaintiff only through the reply notice dated 2.1.1989 sent by the second Defendant. THE second Defendant had obtained the above said release deed clandestinely. THE first Defendant has no exclusive right or title in respect of the Hindu joint family property in favour of the second Defendant. Hence the above said release deed alleged to have been executed by the first Defendant in favour of the second Defendant is not valid and binding on the plaintiff. 2(c) THEre are three tenants in the suit property. THE second Defendant is getting a monthly rent of Rs.1,700/- towards the rent from those tenants. THE second Defendant never gave any share in the said rent to the plaintiff. THE plaintiff is entitled to 7/30 share in the suit property and towards his 7/30 share in the above said monthly rent of Rs.1,700/- for the period of three years. THE plaintiff is entitled to Rs.14,280/-. THE receiver is to be appointed to safeguard the interest of the plaintiff's portion of 7/30 share in the plaint schedule property and also for Rs.14,280/- being the damages for three years. Pending suit the first Defendant mentioned in the plaint, but would deny that the suit property belongs to Hindu joint family property. THE plaint schedule property belongs to the first defendant's mother Poodurammal, exclusively. THE plaint schedule property was purchased by Poodurammal along with the first Defendant and his brother Munusamy Mesthri on 20.3.1921. After the death of Poodurammal her two sons were in exclusive possession and enjoyment of the plaint schedule property. While so, the first defendant's brother Munusamy Mesthri had executed a release deed in respect of his share in the plaint schedule property in favour of the first Defendant. Latter on 22.4.1978, the first Defendant had executed a conveyance through which D2 become entitled to the plaint schedule property exclusively. THE second Defendant has made lot of improvements in the suit property from out of the income derived by way of rent from the suit property. THE plaint schedule property is not the joint family property as alleged by the plaint. THE suit property was mortgaged for Rs.15,000/- by the first Defendant and also by his brother Munusamy Mesthri in favour of one T.V. Ramarao Guptha. THE said mortgage of Rs.15,000/- was discharged by obtaining a loan from an enterprise by name Amirthavalli Thayarammal Enterprises. THE plaint schedule property was brought to auction sale on 26.09.1963 through Murari & Co., that auction was stopped only by paying Rs.3,500/-. As on 15.4.1977 the debt is to the tune of Rs.36,105/- in respect of the suit property. THE plaintiff has written a letter stating that he was prepared to relinquish his share in the property provided he was paid Rs.2,000/-. THE other respondents have also executed a similar letter but no one has come forward to discharge the previous mortgage loan. THE second Defendant, Kothandaraman, plaintiff and Sunthari were paid Rs.2,000/- and Ragavan (D3) was paid Rs.2,500/- and Varalakshmi was paid Rs.1,500/- in respect of the share in the plaint schedule property to get release deed in respect of their share. THE plaintiff has no right or title in respect of the suit property. THEre is no criminal proceedings initiated against the second Defendant. THE second Defendant has not created any document in his favour taking advantage of the advanced age of the first Defendant. THE second Defendant/appellant is the owner of the plaint schedule property. THE suit is barred by limitation. THE Court fee paid by the plaintiff is not correct. THE suit is bad for non-joinder of necessary parties. Hence, the suit is liable to be dismissed with costs. THE plaintiff in his reply statement has denied the averments in the written statement, thereby rejecting his claim set out in the plaint.