S. GOVINDARAJA PILLAI Vs. G. VARADARAJAN

JUDGEMENT

(1.) THE plaintiff in the original suit is the appellant herein. The defendant is the respondent herein. The appellant and the respondent are father and son. Contending that the suit house was the ancestral property of the appellant/plaintiff and hence a coparcenary property belonging to the coparcenary consisting of the appellant/plaintiff, defendant/respondent and another son of the appellant by name Sathasivam; that the suit property was divided among themselves by a registered partition deed dated 17.06.1985 in which the portion of the house described as 'C' schedule in the partition deed was allotted to the respondent/defendant; that the said portion was subsequently gifted by the respondent/defendant in favour of the appellant/plaintiff by virtue of a registered settlement deed dated 30.01.1987 and that the gift was accepted and thereafter, the suit property became the absolute property of the appellant/plaintiff, the appellant/plaintiff had filed Original Suit No.125 of 1991 on the file of the Sub -Court, Thanjavur for a declaration, possession and also the future mesne profits. The further contention of the appellant/plaintiff before the trial Court was that though the property was gifted to the appellant/plaintiff under the settlement deed dated 30.01.1987, the defendant/respondent was allowed to reside in a portion of the property and that the defendant subsequently occupied the entire property which was the subject -matter of the settlement deed and started denying the title of the appellant/plaintiff and that the same necessitated the appellant/plaintiff to approach the Court for declaration, possession and also the future mesne profits.

(2.) THE suit was contested by the defendant contending that the suit property originally belonged to one Sampoornatthammal, the paternal grand -mother of the respondent/defendant; that she died on 17.01.1959 leaving a registered Will dated 17.06.1955; that as per her last Will, the respondent/defendant, being the sole legatee, became entitled to the entire house bearing door No.1729; that the title of the respondent/defendant was also recognised subsequently in 1975 by the plaintiff being a scribe of the document by which the said property was given as security to third parties; that in 1985, when there was a threat from the wife of the respondent/defendant for making a claim of maintenance and attaching the property of the respondent/defendant and as the relationship between the husband and wife remained strained, as per the advice of the appellant/plaintiff, partition deed dated 17.06.1985 and settlement deed 30.01.1987 were executed as sham and nominal deeds to keep the property beyond the reach of the wife of the respondent/defendant; that the said documents were never intended to be, and in fact were not acted upon; that due to the subsequent strained relationship between the father and son, the plaintiff, intending to take fortune out of the misfortune of his own son, has come forward with the frivolous suit and tried to make wrongful gain and that hence, the suit should be dismissed with costs.

(3.) THE trial Court framed as many as eight issues and conducted trial in which one witness was examined and 13 documents were marked as Exs.A -1 to A -13 on the side of the plaintiff and three witnesses were examined and 14 documents were marked as Exs.B -1 to B -14 on the side of the defendant.