SUBRAMANIAN Vs. KALLIAPERUMAL

JUDGEMENT

(1.) The second appeal is directed against the concurrent finding of the Courts below dismissing the suit filed for partition.

(2.) According to the plaintiffs, one Srinivasa Padaiyachi had agricultural land at Movoor village and residential house at Thiruvizhandhur village, South Arcot, Mayavaram Taluk, Tanjavur District. He had three sons by name, Saminathan, Gurunathan and Chellamuthaian. Plaintiffs 1 to 3 are sons of Saminathan and plaintiffs 4 to 7 are children of Gurunathan. The defendants are wife of Chellamuthaian and his children. The plaintiffs contended that Srinivasa Padaiyachi executed a settlement deed, dated 20.09.1985 wherein, he created a trust for deity which, the family was worshiping and made his last son as a Trustee. But, the sons have not carried out the obligation but, they are enjoying the agricultural properties jointly. Likewise, Chellamuthaian the first defendant is occupying the residential property and enjoying the same. Whileso, the income from the agricultural land is shared by three sons. The first defendant, who is in possession of the residential property, has improved it. But, he refused to partaway the shares of the plaintiffs, when the plaintiffs demanded their shares in the residential rental income, hence, they filed the suit claiming exclusive right over the property. Pending the suit, a compromise was entered between the parties and executed Ex.A1 wherein, the plaintiffs agreed to withdraw the suit and retain the possession of the house property exclusively by paying Rs.4000/- and also relinquishing his right over the agricultural land at Movoor village.

(3.) Contrarily to this compromise dated 09.11.1979, the first defendant did not withdraw his earlier suit in O.S.No.795 of 1979. Hence, the present suit filed by the plaintiffs seeking 3/2 share in the suit property. The legal representatives of Chellamuthaian, who arrayed as defendants 2 to 7, after the demise of the first defendant, contested the suit exclusively establishing that the settlement deed of Srinivasa Padaiyachi marked as Ex.A4 is acted upon and properly carried out by Chellamuthaian and his sons, as per wish of Srinivasa Padaiyachi and the terms found in the settlement deed. The house property is an exclusive possession and enjoyment of the defendants and the other two sons Saminathan and Gurunathan have let out the residential house as early as 1929 and 1941 respectively. They neither contributed for the purpose of Pooja as found in the settlement deed nor residing in the suit property or contributing for the maintenance and payment of tax for the suit property. Therefore, the plaintiffs cannot take any claim or share in the suit property through Saminathan and Gurunathan. On appeal, the first appellate Court also rejected the claim of the plaintiffs. Aggrieved by the concurrent findings of the Courts below, this Second Appeal is preferred.