SIVARAMAN Vs. P M SHANMUGHASUNDARA MUDALIAR

JUDGEMENT

(1.) THE suit properties consisting of two houses bearing Door Nos. 4 and 5, South hanumantharayar Koil Street, Erode, were purchased by one Karuppaswami mudaliar, who died in 1944. The said Karuppuswami Mudaliar had two sons, sivaraman and Samiappa. Sivaraman predeceased Karuppuswami in 1939 leaving his widow Karuppayee and three sons, Palaniappa, Shanmugham and Vyapuri. The other son Samiappa, the first defendant in the suit, married Kaveriammal as his first wife and through her he had a daughter Perianayaki alias Ghanambal, who is the second plaintiff in the suit, the first plaintiff being the husband of the said second plaintiff. Dhanalakshmi, the third defendant, is the second wife of samiappa and the second defendant Sivaraman is the minor son of Samiappa through Dhanalakshmi. Karuppuswami Mudaliar executed a settlement deed Ex. A2 dated 4-2-1940 in favour of Kaveriammal in respect of the suit properties and two other properties describing them as his self-acquired properties. He has mentioned in the settlement deed that as his son Samiappa was ill-treating him and not maintaining him, he had executed the settlement deed giving the suit properties and other properties absolutely to Kaveriammal, but subject to the condition that she should maintain him during his lifetime. But even on 6-9-1940 Karuppuswami executed the cancellation deed, a registration copy of which has been marked as Ex. B-2, on the ground that he was not maintained properly and that he desired to have the earlier settlement deed ex. A-2 revoked. Kaveriammal who had conveyed the properties under Ex. B-3 dated 17-6-1940 in favour of her maternal uncle Marimuthu Mudaliar got back the properties under the settlement deed Ex. B-5 on 26-5-1943. On 27-2-1956, she executed a settlement deed Ex. A-1 in favour of the plaintiffs, namely, her son-inlaw and daughter. It is on the strength of this settlement deed the plaintiffs have filed the suit to recover Rs. 10,800 as damages for use and occupation for three years from 3-9-1956 to 3-9-1959, from the defendants. The plaintiffs did not sue for possession of the two houses on the ground that they had filed R. C. O. P. No. 116 of 1958 on the file of the District Munsifs Court, Erode against the tenant for possession.

(2.) THE contention of the defendants is that the suit properties were not the separate properties of Karuppuswami Mudaliar, but were his joint family properties, that Karuppuswami Mudaliar had no right to execute the settlement deed in favour of Kaveriammal, that there was a partition between Samiappa and his nephews, that as Samiappa, was not mentally sound the suit properties were managed by the third defendant on behalf of her husband and her son Sivaraman by letting out to tenants and that the eviction proceedings taken by the plaintiffs against one Perianna Goundan as though he was a tenant are not valid. Even kaveriammal had filed petitions for eviction in respect of houses bearing door Nos. 4 and 5 South Hanumantharayar Koil Street, Erode. Her eviction petition in respect of the house bearing Door No. 5 was dismissed hi H. R. C. No. 179 of 1949 on 84-1950 on the ground that she had no title to the property. Her petition for eviction in respect of the house bearing door No. 4 ended in her favour in, H. R. C. No. 10 of 1949. But her application for delivery in pursuance of the eviction order was not successful as she was obstructed by the third defendant and the petition filed by her for removal of obstruction and delivery was dismissed. The plaintiffs themselves filed R. C. O. P. No. 116 of 1958 against one Perianna Goundan treating him as a tenant in respect of premises No. 5 South Hanuman-tharayar koil Street, Erode, and obtained an ex parte order of eviction and attempted to take delivery through Court, but they were obstructed by defendants 2 and 3. The petition filed by the plaintiffs for removal of obstruction and delivery was dismissed. The contention of the defendant is that the suit is not maintainable, not having been filed within the period of limitation specified in respect of orders made in execution proceedings.

(3.) THE learned Subordinate Judge overruled the contentions of the defendants and decreed the suit for damages at the rate of Rs. 97/-per month. Defendants 2 and 3 have preferred Appeal No. 244 of 1961, and the first defendant has filed Appeal no. 572 of 1962 against the decree passed against them and the plaintiffs have filed a memorandum of cross-objections in Appeal No. 244 of 1961 claiming that the trial Court ought to have decreed Rs. 200/-per month as damages for use and occupation.