PERUMAL Vs. GURUNATHAN

JUDGEMENT

(1.) The second defendant in O.S. No. 116 of 1977 on the file of the District Munsif of Sankari at Salam, who was the 4th respondent also in A.S. No. 13 of 1981 on the file of the Subordinate Judge, Salem, is the appellant in the above second appeal.

(2.) The plaintiffs have filed the suit for a declaration that the plaintiffs as owners are absolutely entitled to be in possession of the properties and for restraining the defendants, their men and servants by a permanent injunction from interfering with the possession and enjoyment of the suit properties by the plaintiffs.

(3.) The case of the plaintiffs was that the suit properties belong to the plaintiffs absolutely as ancestral properties; that the first plaintiff had three sons, viz., the second defendant and plaintiffs 2 and 3, that the third defendant is the wife of the second defendant, that the suit properties along with another extent of eight cents in the same survey number are in possession and enjoyment of the plaintiffs and the second defendant for more than hundred years, that in 1960 the plaintiffs and the second defendant borrowed a sum of Rs. 1.000/- from the first defendant, who insisted for the execution of a document in the form of a sale deed to vouchsafe the loan transaction, that the plaintiffs and the second defendant executed a document on 31-3-1960 styling it as a sale deed in favour of the first defendant without passing any title to him and with no intention to pass such title by virtue of the said document. It is the further claim of the plaintiffs that the amount borrowed was paid even prior to 1964 and that the first defendant has no right, interest or title in the suit properties and he was never in possession of the same. It is also claimed that after discharge of the loan, misunderstanding arose between the plaintiffs and the second defendant and the second defendant was willing to take away the share of the properties, viz., an extent of 8 cents in S. No. 664/1 with tiled building and Kalam, which were constructed in 1963 and that there was a family arrangement between the plaintiffs and the second defendant under a document, dated 14-9-1964 under which the second defendant was given his share of the ancestral properties and that the remaining properties, viz., the suit properties fell to the share of the plaintiffs and the plaintiffs are in possession and enjoyment of the same. According to the plaintiffs, they have been paying the kist for the suit properties all along in spite of the document, dated 31-3-1960 executed in favour of the first defendant, that though the first defendant was made a party to the document, dated 14-3-1964, which is only a family arrangement, styled as a sale deed with the object of getting release of the ' rights of defendants 2 and 3 in favour of the plaintiffs and that therefore the defendants have no manner of right, interest or possession in or of the suit properties. The plaintiffs also reiterated that the second defendant was allotted for his share the properties mentioned in the document, dated 14-9-1964 and he had to pay Rs. 2,000/- for equalization of the share of the plaintiffs and the third defendant, the wife of the second defendant has paid by selling her jewels and that the transaction covered by a document, dated 14- 9-1964 is not an outright sale and it is only a family arrangement. Since the first defendant and defendants 2 and 3 have joined together and started disputing the title of the plaintiffs, the suit came to be filed.