BOORASWAMI Vs. RAJAKANNU AND ORS.

JUDGEMENT

(1.) THIS is an appeal filed by the plaintiff in O.S. No. 107 of 1969 on the file of the Court of the Subordinate Judge of Chidambaram. There was one Rengasami Vandayar, who died in or about 1940. His four sons are Booraswami, the plaintiff, Rajakannu, the first defendant, Chinnadurai, the second defendant and Dharmalinga, the third defendant. He owned certain properties. According to the plaintiff the four sons of Rengasami Vandayar were living as members of a Hindu undivided family till about 1964. In that year there was a division of the movables and the respective brothers started separate messes. The parties were, it is said, put in possession of the properties of the joint family for the purpose of convenient enjoyment. The second defendant was alleged to have entered into partition with his sons, defendants 4 to 6, later on under which some of the joint family properties were sought to be divided. According to the plaintiff, some properties had been purchased in the names of defendants 4 to 8 out of joint family funds. The plaintiff, therefore, issued a registered notice to the defendants on 1st September, 1969 to have all the joint family properties divided and allotted by metes and bounds. There was no reply and the plaintiff, therefore, came forward with the present suit for partition and separate possession of his 1/4th share in the suit properties.

(2.) THE third defendant filed a written statement, which was adopted by the first defendant. He admitted that the joint family owned the immovable properties set out in the plaint, and claimed 1/4th share in the said properties. According to the third defendant there were other properties also, which were divisible among the brothers.

(3.) THE learned Subordinate Judge framed Several issues, the main one being whether the properties described in schedules I, II and III were joint family properties and whether the partition said to have been effected in 1962 was true. After considering the evidence placed before him, the learned Subordinate Judge held that the properties described in Schedule I were ancestral properties, that some of the properties described in Schedule II had been purchased out of ancestral nucleus and that the partition in 1962 pleaded by the second defendant was true. As this was a case in which there was a division in status even in 1962, the suit for partition, as if there was a joint family in existence, was not proper and, therefore he dismissed the suit. The plaintiff has, filed this appeal.