RAMASAMY PILLAI Vs. R BALASUBRAMANIAM

JUDGEMENT

(1.) THE defendants in the suit are the appellants in the second appeal. THE respondent filed a suit for partition claiming a preliminary decree for 1/4th share in the suit properties. According to the plaintiff, he is the eldest son of the first defendant/ramasamy Pillai and defendants 2 and 3 are the other sons of the first defendant and defendants 4 to 6 are the subsequent purchasers from the first defendant. One Subramaniyam Pillai, the father of the first defendant, in and by a gift deed dated 26. 12. 1920 marked as ex. A-1, has given the property for charitable purposes. Since the charity was not effected, the said property was partitioned between the first defendant and his brothers by a partition deed dated 23. 11. 1924 marked as Ex. A-2. THE said partition'deed included the property earmarked for the charitable purposes by subramaniyam Pillai. According to the plaintiff, even though the said property was earmarked for charitable purposes, for the purpose of the partition deed ex. A-2, the same cannot be partitioned. However, the said property obtained by way of partition had been enjoyed as joint family property by the plaintiff and defendants 1 to 3. Taking advantage of the fact that the plaintiff was living away, defendants I to 3 have sold some of the properties after entering into a partition among themselves by a partition deed dated 11. 6. 1987 marked as Ex. A-4 and according to the plain tiff, the said partition deed is not valid in law. THE sale effected by defendants 1 to 3 in favour of defendants 4 to 6 are invalid and in these circumstances, after giving notice to the, defendants, the plaintiff has filed the present suit claiming a partition of 1/4th share in the suit properties. THE trial Court, after elaborate trial, framed a specific issue about the non-inclusion of certain items of properties, viz. , whether the non-inclusion of the properties mentioned as items 1, 3 and 4 in the A schedule We allotted as the plaintiff's share in the partition dated 11. 6. 1987, in the plaint Schedule will amount to partial partition and fatal to the suit for partition. Another issue was framed as to whether the plaintiff has accepted the partition deed dated 11. 6. 1987 and is living in the property allotted to him and if so, whether he is estopped from filing the present suit for partition. THE trial Court, having found that as per Ex. A4, the plaintiff is living in the house allotted to him as admitted by his oral evidence and also on the basis that some of the items of the properties allotted to the plaintiff under the partition deed have not been added in the Schedule to the-suit, has dismissed the suit on the basis of partial partition. On appeal by the plaintiff, the first appellate Court has granted a decree for partition in favour of the plaintiff by setting aside the judgment of the trial Court. THE first appellate Court has rejected the contention of the defendant that on 26. 10. 2000, a sale was effected by the first defendant in view of the fact that it is for the necessity of the family and the partial partition is not binding on the plaintiff and also finding that the partition effected on 11. 6. 1987 under Ex. A-4 is not valid. It is as against that said judgment of the first appellate Court; the defendants have filed the present second appeal. THE, substantial question of law that was framed by this Court was relating to the principle of estoppel.

(2.) I have heard the learned counsel for the appellant as also the respondent.

(3.) IT is based on the said judgment, the learned counsel for the appellant insists for remitting the matter to the first appellate Court for a proper decision regarding the issue of partial partition.