N DAKSHINAMURTHY Vs. P NATARAJAN

JUDGEMENT

(1.) THIS appeal has been preferred against the decree and Judgment in O. S. No. 387 of 1987 on the file of Sub Court, Namakkal. The plaintiff in O. S. No. 387 of 1987 is the appellant herein.

(2.) THE short facts in the plaint relevant for the purpose of deciding this appeal are as follows: "the suit was filed for partition and for an order of permanent injunction. The first defendant is the father of the plaintiff. The second defendant Subbaraya Gounder is the brother of the first defendant. Previously, the plaint schedule property was the joint family property of the plaintiff, first and second defendants. The plaintiff and the defendants were in possession and enjoyment of the joint family properties. The Plaint "a" schedule property was allotted to the first defendant in the partition entered into between the first defendant and his father. The plaint "b" schedule property was allotted jointly in favour of first and second defendants. The first and second defendants are in possession and enjoyment of the respective share which are scheduled as plaint "b" schedule property. The plaintiff is residing separately for the past more than ten years and cultivating a portion of the land separately. The first defendant is residing separately. The first defendant borrowed some amounts through third defendant Karur Vysya Bank Limited, but the plaintiff was not a beneficiary under the said loan. The first defendant had no necessity at all to borrow any amount from the third defendant. The borrowing made by the first defendant is not for the family or for the benefit of the plaintiff. The third defendant is bringing the suit properties to sale in REP No. 17 of 1987 in O. S. No. 44 of 1984 on the file of the Sub Court, Namakkal and the same was posted to 30. 9. 1987. If the respondent is allowed to bring the properties to sale then the right of the plaintiff will be very much affected and it will not be possible for the plaintiff to retain the same. The plaintiff is entitled to share in the suit "a" schedule property and 1/4th share in the plaint "b" schedule property. The plaintiff's share will not be liable for the amount due to the third defendant from the first defendant. The plaintiff was not at all benefited by the borrowing, which were made by the first defendant. So the plaintiff's property will not be liable for payment for the debt due to the third defendant. Hence prayer for permanent injunction restraining the third defendant from bringing the properties to sale in REP No. 17 of 1987 in O. S. No. 44 of 1984. The plaintiff is entitled to share in the plaint "a" schedule property and 1/4th share in the plaint "b" schedule property. The plaintiff asked the first defendant with the help of relations and well wishers to divide the properties and allot one such equal share in the "a" Schedule properties and 1/4th share in the "b" schedule properties. Since first and second defendants are not amenable for amicable partition, the plaintiff has come forward with the suit for partition. The plaintiff came to know about the sale proceeds only through the paper publication in one issue of "malaimurasu" dated 18. 9. 1987. The decree obtained by the third defendant will not bind upon the plaintiff and his share in the suit properties and the first defendant's share alone is more than sufficient to meet the decree debt of the third defendant As the defendants 1 and 2 are not amenable for amicable partition, the plaintiff is forced to file the suit for partition and separate possession.

(3.) THE first defendant in his written statement would contend that the plaintiff is his son and the second defendant is his brother and that in the family properties, the plaint "a" schedule properties were allotted to the first defendant and the plaint "b" schedule properties were allotted to the first defendant and his brother second defendant. Hence the plaintiff is entitled to share in plaint "a" schedule properties and 1/4th share in the plaint "b" Schedule properties. The plaintiff does not want to continue in the Hindu Joint Family and he got separated himself from the Hindu Joint Family and leading a separate life. Between the parties, there was a mediation took place in front of the panchayadhars on 20. 12. 1976. After the separation of the plaintiff from the Hindu Joint Family, the first defendant is leading a separate family life. The first defendant had borrowed a loan from the third defendant, bank. For the above said loan, family properties were shown as collateral security. The first defendant has utilised the borrowed amount, only for his personal use. The plaintiff is in no way connected with the said loan amount. The said loan will not bind the share of the plaintiff in the plaint schedule properties. This defendant has no objection for granting relief as prayed for in the plaint.