C THIRAVIYARAJ Vs. ARULAYEE AMMAL

JUDGEMENT

(1.) The Plaintiffs 1 and 5 are the appellants. The suit is filed for declaration that item No.1 of the suit property belongs to the plaintiffs 1 to 5 and for consequential injunction, for declaration that the item No.2 belongs to the Plaintiffs 6 and 7 and for injunction and mandatory injunction and removal of gate and wall as stated in the Plaint.

(2.) The case of the Plaintiffs is that the suit property originally belonged to one Subbu Rowther who sold the suit properties to Michael Nadar on 11.02.1963. The said Michael Nadar is the paternal uncle of the Plaintiffs. One Devasahaya Nadar had six sons viz., Michael Nadar, Sornam @ Anthonimuthu, Gnanasamy @ Savarimuthu, Duraisamy @ Arockiasamy Nadar, Selladurai @ Viyagappa Nadar and Ayyadurai @ Sevasahayam. Of all the above sons Duraisamy @ Arockiasamy Nadar died leaving behind his wife and two children who are shown as Plaintiffs 6 and 7. The Plaintiffs 1 to 5 are the children of Selladurai @ Viyagappa Nadar. It is stated that there was a partition on 13.09.1967, by which the sons of Devasagaya Nagar partitioned the property and the partition list was prepared. As per the said partition, the fourth schedule was allotted to the Plaintiffs 6 and 7 and the 6th schedule was allotted to the Plaintiffs 1 to 5. After the partition, the respective sharers were in enjoyment of the suit property. The first schedule of the suit property was settled in favour of the Plaintiffs 1 to 5. After the partition, the respective sharers were in enjoyment of the suit property. The first schedule of the suit property was settled in favour of the Plaintiffs 2 to 5 by their father Selladurai @ Yagappa on 07.12.2000 and the Plaintiffs claimed to be in possession of the suit property from the said date and also obtained patta. The second schedule property which belongs to Duraisamy @ Arockiasamy Nadar had settled the property on the same date i.e. on 07.12.2000, in favour of the sixth and seventh Plaintiffs. It is also stated that as the Plaintiffs, while dealing with the property in their original right, there was a mortgage deed on 27.12.1973, in favour of the mother of the Plaintiffs 6 and 7. The defendants who have got no right in the suit properties were trying to interfere with the peaceful possession of the Plaintiffs. Hence, the Plaintiffs have filed a suit for declaration and injunction.

(3.) Resisting the suit, the defendants have filed their written statement contending that the Plaintiffs never had any right in the suit properties. The suit properties were purchased by Michael Nadar on 11.02.1963 and the same was purchased by said Michael Nadar out of his own income for the benefit of his wife and children. The other brothers of the said Michael Nadar had partitioned the properties long back and there was no question of joint family purchase. The partition alleged to have entered on 13.09.1967 is denied by the defendants. It is further contended by the defendants that the alleged partition deed was created only for the purpose of suit and the settlement deeds dated 07.12.2000 under Exs.A3 and A14 are also denied by the defendants. The mortgage deed dated 27.12.1973 is also disputed as a sham and nominal document, which is also created for the purpose of the case. As the defendants are the owners of the property by virtue of the Sale Deed dated 11.02.1963, the Plaintiffs cannot claim any right over the suit property and prayed for dismissal of the suit.