KUPPUSWAMY Vs. PERIANNAN

JUDGEMENT

(1.) This Appeal coming on for hearing on Tuesday the 21st day of November, 1995 and having stood over for consideration till this day, the Court delivered the following Judgment :- Plaintiff is the appellant.

(2.) The averments in the plaint are as follows :- The defendants 1 and 4 are sons of Chinnanna Gounder and they constituted a Hindu Joint Family to whom the suit properties belonged. The plaintiff is the son of the first defendant. The grandfather of' the plaintiff is dead. In addition to his 1/3rd share, the first defendant is entitled to a share in his deceased father also. He is entitled to 5/12 shares in all. Third defendant is the daughter of Chinnanna Gounder. Defendants 5 to 26 are the co-owners of various survey numbers. Defendants 27 to 29 are the alienees from defendants 1 and 4 and their father. The plaintiff is the only son of the first defendant. The parents of the plaintiff lived together as husband and wife for 12 years after the marriage. The first defendant developed illicit intimacy with one Pavayammal and it resulted in quarrel between the first defendant and his wife. The plaintiff and his mother are living separately from the first defendant for the past 24 years. The first defendant got a daughter through Pavayammal. The plaintiffs mother for herself and as next friend of the plaintiff who was then a minor, filed O.S. No. 343/70 for maintenance for herself and for partition of the plaintiffs share. During the pendency of the suit the plaintiff attained majority and he elected to proceed with the suit. On the objection taken by the first defendant, viz., relief of maintenance and relief of partition and separate possession cannot be clubbed together in a single suit, a preliminary issue was framed and it was decided in the said suit that both the reliefs cannot be clubbed together. The plaintiff and his mother decided to proceed with the relief of maintenance for the mother and reserved the right for the relief of partition and separate possession. The suit was decreed. The appeal preferred by the first defendant was dismissed with a modification regarding the quantum of maintenance. The present suit is for partition and separate possession of the plaintiff's share in the suit properties. The plaintiff is entitled to 5/24 share in the A Schedule properties. 'B' schedule properties were acquired by the first defendant from out of the income from the A schedule properties. Therefore, they are also liable for partition. Chinnanna Gounder gave up the properties to his sons even when he was alive and defendants 1 and 4 were enjoying the same separate ly. The first defendant is an agriculturist. The property was yielding good income. From out of the income, he has acquired B schedule properties. With a view to defraud the plaintiff and his mother, the first defendant has created fictitious debts and sold some of the properties. The sale in favour of the 27th defendant in respect of S. No. 224/3 is therefore, not binding. The sale in favour of the defendants 28 and 29 in respect of S. Nos. 180 and 383/2 is also not binding on the plaintiff. There is no necessity for selling the property. The sale has been effected after a Division in status had taken place. It is therefore, not valid and binding on the plaintiff. During the pendency of the prior suit O.S. No. 343/1970, at the instance of same panchayatdars, the first defendant gave possession of some properties to the plaintiff and the plaintiff was cultivating the same. But, he is not agreeable for amicable partition and hence the plaintiff has filed the suit.

(3.) The first defendant in his written statement contends as follows :- The plaintiff was given half share out of the first defendant's share in the A schedule properties besides a sum of Rs. 1,000/- in cash. He was directed to discharge half share in the family debts to the tune of Rs. 30,000/-. A partition between the plaintiff and his father had already been taken place and they are in separate possession of their respective shares. The suit is therefore not maintainable. The 'B' schedule properties are self-acquired properties of the first defendant out of debts incurred by him without any family funds and income'from the A schedule properties. The allegation that there was income from which the 'B' schedule properties were acquired by the first defendant is not true. The debts were incurred for acquiring properties even by Chinnanna Gounder. The sale deed in favour of defendants 27 to 29 was not only by the first defendant, but also by his father Chinnanna Gounder as well as his brother the 4th defendant. The sale deeds are binding on the plaintiff. The suit is liable to be dismissed, since already a partition has been effected between the plaintiff and the first defendant.